Unreported National Court Decisions
N1941
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 682 OF 1999
THE STATE
-VS-
JACK OROKO TEPOL
Goroka
Kirriwom J
10 August 1999
23 September 1999
8 October 1999
CRIMINAL LAW –plea of guilty - manslaughter by provocation – Depositions disclose defence of aiding in self-defence - Directions to counsel for further address – Court rejects plea of guilty and substitutes not guilty plea after conviction but before sentence– Nolle Prosequie presented – Accused discharged – Criminal Code, s. 271.
PRACTICE AND PROCEDURE – Guilty plea – Multiple defences open to the accused including aiding in self-defence and self defence - No application to change plea of guilty to plea of not guilty by counsel – duty of court to act on its own volition – Criminal Code, ss. 271 & 563
PRACTICE AND PROCEDURE – Nolle Prosequi – When appropriate – Duty of counsel.
Brief facts
The accused was arraigned and he pleaded guilty to manslaughter under section 303 of the Criminal Code for repeatedly stabbing the deceased who subsequently died. Counsel for the accused and the State both accepted that there was overwhelming evidence of provocation. The accused saw the deceased tackle his wife to the ground and threw himself on her to have sex with her when he confronted him in the act. The deceased then fought the accused and they tackled each other to the ground when the accused stabbed the deceased several times. 
After thoroughly reading the depositions the court rejected the plea of guilty because there was defence under section 271 and even section 269 that the accused could have pleaded and if he did not get up on either, he would still be liable under s.303. 
When the trial was fixed to proceed, the key State witness, accused’s wife did not give evidence and the State presented a nolle prosequie. The undesirability of nolle prosequie when a case is part heard and the chances of resurrecting the case may be unlikely is discussed in the judgement.
Cases Cited:
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
The State v Sari [1990] PNGLR 48
The State v Peter Painke [1976] PNGLR 210
Counsel
Mrs C. Ashton-Lewis for the State
Mr D. Umba for the Accused
8 October 1999
KIRRIWOM J: This case came before me on 10th August, 1999 as a short plea matter. The accused is a young man in his twenties, married with two children and is educated to Grade 10. He is represented by private counsel and he pleaded guilty on arraignment to a charge of manslaughter. The State represented by Mrs. Asthon Lewis, a senior State Prosecutor, upon outlining the facts for purposes of arraignment acknowledged provocation was the basis for preferring the charge of manslaughter by virtue of section 303 of the Criminal Code. 
The prosecution case was that at about 8 pm on the night of 8th May 1999 at Ifiufa village the accused saw his wife, Edna Ken, in the company of two men, Petrus Pilisive, the deceased and Sisi Paul, Edna’s cousin. She and the accused had a domestic argument and she had gone to her village but had overstayed a normal cooling off period. The accused went that night to the village to check on her. 
When he saw his wife with these men, he followed them at a distance and heard Sisi Paul suggesting to Edna, to sleep with the deceased and she refused. The accused next saw the deceased push his wife to the ground and mounted her trying to have sex with her while she was shouting for help. 
He confronted the deceased and a fight ensued between them. In the course of the fight the accused repeatedly stabbed the deceased who died immediately. 
The State alleged that at the time the accused stabbed the deceased he did so on the heat of passion caused by suddenly seeing his wife being about to be raped.
I entered a provisional plea of guilty and proceeded to reading the depositions. The evidence in the depositions supported the State’s allegations and I convicted the accused.
When allocatus was administered the accused made a short statement where he expressed his remorse and explained the reasons for his action. Because of what had ultimately transpired in this case, it is necessary to set out the verbatim of what the accused said as I recorded:
‘Trouble that happened was not intended. My only intention was to bring my wife back. When I arrived I saw Petrus Pilisive doing bad thing to my wife.
When we fought he tried to suffocate me and something I did not expect happened and I am sorry for that which had happened.
I say sorry to his parents and to the community of Ifiufa who lost Petrus. I say sorry for all this’.
I then adjourned the case to 6th September 1999 for my deliberation on sentence. Upon careful and closer examination of the facts and the entire circumstances pertaining to the incident that gave rise to this charge, I had trouble accepting the plea of guilty, especially in the light of section 271 of the Criminal Code. This section is headed AIDING IN SELF-DEFENCE and provides:
‘Where it is lawful for a person to use force of any degree for the purpose of defending himself against assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.’
As neither the accused’s own lawyer or the counsel for the State adverted to this defence at the hearing, I decided that I need not proceed to sentencing until I have drawn their attention to this issue and have heard from both counsel. I subsequently confirmed that neither counsel had considered s. 271. My comments and the views I expressed on 6th September 1999 upon resumption are reproduced hereunder:
SENTENCE DIRECTIONS
The accused pleaded guilty to killing the deceased who was about to rape or already in the process of raping his wife. The facts as presented by the State for purpose of arraignment support this and are clearly consistent with the story the accused gave to the police and contained in his record of interview. To an extent his wife Edna also supports the story of her being about to be raped in front of her cousin’s house when the accused emerged from nowhere. A fight ensued between the deceased and the accused during which the accused stabbed the deceased four times with a pocket knife. 
The incident occurred at his wife’s village of Ifiufa between 8:00 – 8:30 p.m. on 8th May 1999. The wife who had been in her village following a domestic quarrel at home with her husband failed to reunite with him and the children and the accused proceeded to the village to take her home. On arrival that night he encountered a scene where he saw his wife leave a gambling crowd and followed behind by two men calling out her name. One of the men was Sisi Paul, Edna’s cousin brother. The accused heard Sisi Paul telling Edna to sleep with Petrus Pilisive, the deceased, a suggestion which the accused heard his wife refused. Both Sisi Paul and Petrus Pilisive had been drinking and were intoxicated. The accused did not know this until later when he was close enough to the deceased to smell his breath. Sisi Paul even says that they had drunk some OP Rum. The accused kept some distance in the cover of the darkness and followed them as Sisi Paul led Edna to his place where he had planned for her to sleep or have sex with the deceased. The accused who knew the cousin’s house quickly took a short cut to the house and hid himself and waited. When they arrived the deceased and Edna were told to wait in front of the house while Sisi Paul disappeared at the back of the house to find a tool to open the door to let in the deceased and Edna. As soon as the deceased and Edna were by themselves, the deceased tackled Edna to the ground in front of the house and slept on top of her. He lifted up her skirt and tore her underwear. He unzipped his own trousers and was struggling with her to force open her legs when the accused appeared and prevented the deceased from going further than what he had already achieved. 
Extracts of evidence in the depositions including what is contained in the record of interview between the Police and the accused clearly set out the facts for a defence of self-defence:
Apart from what the accused stated in the allocatus, the following excerpts are from the record of interview:
‘Q17.   When you arrived at Iufi-Iufa village from Rothmans Ufeto, where exactly did you see your wife?
Ans.    I saw her when Sisi was seducing my wife to have her sleep with Petrus. I did not see her then but could hear her name being called, so I knew she was there so I walked towards where they were. I was walking behind them at about 2 – 3 meters and could hear Sisi telling my wife to sleep with Petrus. I heard Sisi say in Pidgin “Edna bai yu silip wantaim Petrus” (Edna, you will sleep with Petrus). I heard my wife reply and said “Sisi, yu save mi marit na mi gat pikinini” (Sisi, you know I am married and have children). Then I heard Sisi saying “Edna yu bai silip wantaim Petrus” (Edna, you will sleep with Petrus). Again I heard my wife replying “Dispela kain pasin em mi les, na tumora long sande bai mi go long Rothmans long man na pikinini bilong mi stap long en”. (I hate this, and tomorrow on Sunday I’ll be going to Rothmans where my husband and children are staying).
Q19.   Who was your wife with when you saw her again?
Ans.    She was with Petrus, and that time I saw Petrus tackling her to the ground and whilst my wife was on the ground, I saw Petrus lift up my wife’s skirt and at the same time I saw him unzip his trousers and as I watched, I saw Petrus mounting my wife and slept on my wife’s tummy. As I continued to watch, I saw Petrus reach up to my wife’s private parts and ripped off her underwear. At that time I came out from where I was standing…..
Q20.   When you saw Petrus, what exactly was he doing, whilst lying on your wife’s tummy?
Ans.    He was trying to force apart my wife’s legs and have sexual intercourse with her despite my wife’s attempts to resist and free herself from Petrus’s grasp. My wife was held tightly by Petrus and she screamed and shouted the word “AIYO”.
Q21.   When you saw what Petrus was doing to your wife, by attempting to force open your wife’s legs, what really went into your mind and what did you think would happen next?
Ans.    I saw that Petrus was having sexual intercourse with my wife.
His wife Edna Ken’s statement does not explicitly say she was being raped but nevertheless in another part of her statement she shows that the deceased was forcing her where she says:
“Seim taim Sisi igo long kisim spun bilong opim dua, na mi go sanap long grass na Petrus ya ikam long frant bilong mi. Em pusim mi igo daun long grass na em apim sket bilong mi. Seim taim em, taim em pusim mi go daun em, man ya, Jack em kam long baksait bilong mitupela. Mi silip istap long graun taim Petrus I pusim mi….Taim Petrus I pusim mi go daun mi kirap na mi tok ‘YU LUSIM MI” Na mi pusim em tasol em pusim mi strong na apim sket bilong mi taim pudaun pinis na silip long graun. Long dispela taim nogat narapela man istap em mitupela yet, Petrus na mi yet, Sisi em igo pinis long narapela haus…” (When Sisi went to fetch a spoon to open the door, Petrus came towards me and pushed down on the grass where he lifted up my skirt. About the same time Jack came from behind us. I was already on the ground after I was pushed down by Petrus… When Petrus pushed me down I said to him “YOU LET ME GO” And I pushed him but he pushed me harder and lifted up my skirt when I was already lying on the ground. At that time there was no one around except Petrus and myself, just the two of us, Sisi had gone to another house.)
State accepted provocation and charged the accused with manslaughter under section 303 of the Criminal Code in that the accused had acted in the heat of passion and before there was time for his passion to cool. The accused then pleaded guilty to the charge. I accepted the plea of guilty from the perspective of adultery-related unlawful killings where a husband catches his wife in the act of committing adultery with another man. But adulterous affairs often involve consensual sex between a man and a woman. This is not the same situation. The husband does not witness an act of consensual sex about to take place between his wife and the deceased. He witnesses his wife being enticed by his own cousin to be carnally known by another man and she is unwilling. She protests and tells her cousin to respect her status as a married woman and mother of two children who were with their father at Five-Mile Rothmans. He then witnesses the deceased force his wife down to the ground, lift up her skirt and rips off her underpants and is forcing her legs apart to possess her. He witnesses his wife struggling and resisting and pleading to her attacker to let her go. He then emerges from his hiding and confronts the deceased.
If there is a law authorising one person to act in defence of another person and be entitled to the protection of the law from criminal culpability, it is section 271 of the Criminal Code - aiding in self-defence – which provides:
‘Where it is lawful for a person to use force of any degree for the purpose of defending himself against assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.’
I wonder whether counsel had given some thought to this defence at the time of pre-trial consultations prior to adopting the course taken. If so, I would like to hear counsel enlighten my mind so that I can be satisfied that the plea taken is in order and that the admission was made after proper advice had been given. Otherwise the plea as stands may be vacated and a not guilty plea will be entered for the accused. In which case the plea remains and I can proceed to sentencing the accused/prisoner. However, if counsel had not considered this defence, then I am prepared to change the plea of guilty to one of not guilty for a trial to be conducted on this defence alone. There are two pertinent questions to ask: (1) whether the State is calling any further evidence; and (2) whether or not I have to disqualify myself for another judge to hear the case.
I am concerned about leaving the plea as it is on the facts presented in the prosecution case. The view I hold does not stem from what the accused stated in the allocatus but from the evidence contained in the hand-up brief, particularly in the record of interview and the wife's deposition. There seems to be no dispute that the accused acted in defence of his wife who was being or about to be raped. There was a criminal act being committed against his wife and he reacted to prevent its happening. She was not just another woman or a casual friend, she was his wife and mother of his two children. There is a special relationship between husband and wife created by matrimony that excludes all other persons from intruding into or interfering with that sacred bond. A husband who reacts to defend his wife from sexual attack or from being carnally known by another man does so within his moral, if not, legal duty to defend his wife and to protect the sanctity of the marriage to which they are bonded to each other for life. The deceased was trespassing onto the accused’s property, if I may use this analogy, and the accused has both moral and legal duty to fend off and keep out intruders or trespassers entering his property which by law belongs to him and him alone. 
On the other hand however, if the stabbing is said to be a separate incident to the attempted rape, then what the accused said in the allocatus may have some relevance in that the deceased who was on him was ‘suffocating’ him and he had to save himself from imminent danger of strangulation. He therefore used the pocket knife that he normally carried around to stab the deceased. This is clearly self-defence against unprovoked assault. The deceased was the one in the wrong. He had no right to fight the accused who was simply defending what was his alone. 
When I was satisfied that counsels' failure to accord the accused the benefit of section 271 defence would amount to an unfair trial especially if the accused had a chance of an acquittal, I vacated the plea of guilty and entered a plea of not guilty. Counsel for the State indicated that it was not contemplating any new evidence other than to rely on what was already before the court, especially that of Edna Ken, the accused’s own wife, whose evidence was crucial on the issue of the defence under section 271. 
The issue of whether the court can vacate a guilty plea and substitute a not guilty plea has been discussed in a number of cases both before this court and also the Supreme Court. In The State against Joe Ivoro and Gemora Yavura [1980] PNGLR 1 Kapi, DCJ dealt with this issue and after citing from various Queensland and New Zealand authorities that permitted the courts to change pleas already taken and recorded held that the court can change a plea of guilty to a plea of not guilty where:
1.       The accused had not really pleaded guilty;
2.       There was mistake on the part of the accused;
3.       There is a clear defence to the charge.
In Joe Ivoro and Gemora Yavura (supra) the two accused where charged with break, enter and steal and rape. They pleaded guilty to both counts. There was no application by defence counsel to amend the pleas to not guilty. The depositions supported the charges and they were convicted. On allocatus both accused denied breaking into the building but admitted going into the house when they saw the door wide open. They also denied raping the prosecutrix but admitted to having sexual intercourse with her with her consent. His Honour was then faced with the question of whether to accept their pleas and proceed to sentencing having read the depositions and the evidence therein or to abort the plea and run a trial. And if the matter was to proceed to a trail whether it would be proper for him to hear the case or should he disqualify himself. The court held, inter alia:
1.       The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed;
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;
3.       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 section 578 of the Criminal Code;
4.       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.
5.       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.
In that case His Honour proceeded to disqualify himself when the State elected to proceed to trial on the basis of his having read the depositions and forming certain opinions on the case. Similar views were also expressed in The State against Sari [1990] PNGLR 48 where the court went further and found:
(a)      that the court’s discretionary power to change the plea of guilty to not guilty where the lawyer does not apply under section 563 of the Code to change the plea can be derived from the Constitution section 57 to enforce guaranteed rights and freedoms and also in the exercise of the court’s inherent jurisdiction to do justice in the circumstances of a case under section 155(4) of the Constitution and
(b)      that for the court to not change the plea of guilty to one of not guilty where the depositions do not disclose any offence, do not disclose all the elements of the offence charged or disclose possible defences may amount to denial of justice according to law in the context of section 37(1) and (4)(a) of the Constitution.
In this case the trial judge was asked to disqualify himself and he did from further hearing although he saw no potential bias having read the depositions.
This case came before me, by way of a negotiated plea. I am fortified in this view as it was indicated to me at the outset by both counsel that this would be a fairly short plea matter. Consequently there was no application made under section 563 of the Criminal Code which empowers the defence counsel to enter a plea of not guilty with leave of the court. But the combined effect of the decisions in both Joe Ivoro and Sari (supra) clearly show that the accused in a criminal trial has the right to be tried fairly and according to law as guaranteed under the Constitution. If he has a legal defence that counsel had for some reason overlooked it and had not accorded the accused the benefit of that defence by having the prosecution prove his guilt according to law, it behoves the court, as an impartial and fair tribunal of both facts and law, to draw the attention of counsel to the defence available to the accused. It is then up to counsel to assist the court in resolving that issue if it had already been addressed prior to the matter being brought before the court. But in a situation where neither counsel had considered the defence or point raised after plea of guilty is confirmed but before sentence is passed, the court must vacate the plea of guilty and enter a plea of not guilty and the State must prove its case against the accused in the normal way. 
This is the course I adopted in this case and the matter was set down for trial. Counsel for State did not object to my presiding on the trial. There was therefore no question of bias and there was no need for me to disqualify myself even if I wanted to. And with the back-log of cases the court is presently inundated with and compounded by inadequate judicial strength presently faced to mount National Court circuits on a regular basis, it would have meant months of waiting for the accused until another judge was able to come this way and hear his case. While this has been an easy trend in the past, and for good reasons too, the limited resources available today cannot afford it. But my position was taken openly in full consultation with both counsel and nothing is more permissible than what I did. Bray, CJ in the South Australian case of Prowse v Bartlett (1972) 3 SASR 472 cited by Jalina, J in The State against Sari succinctly sums up the position as follows:
“judges and magistrates frequently take strong views about contentions put before them and sometimes express themselves forcibly during the course of a trial. It is often well that they do so express themselves, because that gives the party affected an opportunity to appreciate the considerations which are weighing with the tribunal and to answer them. A judge who keeps his mouth firmly closed during the hearing and refrains from giving utterances to his thoughts may decide the case on considerations which could have been answered if they had been made known to the unsuccessful party during the hearing. Such remarks on the part of a judicial officer are not to be taken, extreme cases apart, as indicating that his mind has been irrevocably made up or that he is not open to further argument…”
The defence raised was legitimate which was subsequently conceded to by counsel for the State. Whether or not that defence succeeded in the end is immaterial; the accused does not bear any onus from the start to the finish in any criminal trial. In this context I hasten to add that Counsel representing accused persons charged with serious criminal offences must always exercise greater degree of responsibility in discharging their professional duties to their clients. It is easy to overlook a salient and almost insignificant feature in a case, may be a point of law, amidst the mounting pressures of work and prompted by the need for expediency to clear up one’s list of assigned cases. But that salient or insignificant point could be the ‘ace up the sleeve’ that could win the client's case or could send him to prison for a long time when the result ought to be different. 
On 23rd September 1999 the case came before for hearing but the State case took a different turn. The prosecution key witness Edna Ken did not want to testify in the trial and the State indicated that it was not proceeding further with the case by presenting a nolle prosequie. State case could not advance further without the evidence of Edna Ken not only because she refused to testify but she was legally not compellable to give evidence against her husband particularly when, even her own story, indirectly supported sexual attack on her. State was faced with double problem regarding its key witness and this is why I am not sure that the course adopted is correct which I explain below. 
Defence took no objection to the nolle prosequie being presented when the case is already part heard before me. From the prosecution point of view probably this is the right course to take and perhaps even from the court's perspective especially after the judge had played a significant role already in changing the course of this matter from a guilty plea to one of not guilty. From public view there can be no doubt that justice is properly carried. But from a strict legal point of view as far as the accused is concerned, if the State case cannot improve now for the reasons given, there is no way that it will improve at all. If there is change of heart by the witness to give evidence at a later date, the objections raised on the grounds of unfair trial and abuse of process in The State v Peter Painke [1976] PNGLR 210 ring quite loudly in my ears leaving aside the legal presumption that a wife is not a compellable witness against her own husband. And given the facts in this case, can there be a better case for a spouse to invoke this law? Thus, from the accused's perspective, he would have a legitimate reason to be aggrieved by the way the case has been left in abeyance when in all propriety he was entitled to an acquittal or a declaration by the State to bring this matter to its finality. As I said nolle prosequie does not guarantee one hundred percent finality of a matter where State can resurrect a case when they have convincing evidence. However, no objection was raised and I accepted the nolle prosequie to enable the accused his freedom from further incarceration in jail. I only make this observation in passing so that should the need arise in the future to address this issue, the record will show that I have not overlooked this and that there is a limit to what a judge can do on its own volition without playing the role of an advocate.
I order that the accused be discharged from custody forthwith.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Acanufa & Associates