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Poka, The State v [1977] PNGLR 27 (17 February 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 27 - The State v John Mugur Poka 

[1977] PNGLR 27

N87

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN MUGUR POKA

Mount Hagen

O’Meally AJ

15-17 February 1977

CRIMINAL LAW - Practice and procedure - Entry of plea of not guilty pursuant to s. 575 of Criminal Code - Effect of - Whole matter at large - Defence not restricted to grounds upon which discretion exercised.

CRIMINAL LAW - Evidence - Admissions made on arraignment - Subsequent entry of plea of not guilty pursuant to s. 575 of the Criminal Code - Use to which words may be put - Accused not illiterate nor entirely ignorant of law - Prosecution entitled to rely on words so uttered.

The accused was charged under s. 377 of the Criminal Code with stealing. When arraigned the accused, who spoke and understood English, admitted the truth of the allegations made against him. Subsequently a plea of not guilty was entered pursuant to s. 575 of the Criminal Code, on the ground that the accused desired to test the prosecution case. Upon the question of whether what was said by the accused upon arraignment should be disregarded,

Held

(1)      Notwithstanding an admission of the truth of allegations has been made upon arraignment, once a plea of not guilty has been entered under s. 575 of the Criminal Code the whole matter is at large; that is, the prosecution must prove every fact and circumstance constituting the offence charged in the indictment, and the accused is not restricted to contesting the case solely upon the ground upon which the judge exercised his discretion under the section.

Nai’u Limagwe v. The State, [1976] P.N.G.L.R. 382 referred to.

(2)      Where an accused is illiterate and entirely ignorant of the processes of the law, the court should be hesitant in allowing forensic use to be made of words uttered by such an accused, once a plea of not guilty has been entered under s. 575 of the Criminal Code; when an accused is not under any such disability it is open to the prosecution to indicate at the appropriate time that he intends to rely upon what was said.

Trial

This was the trial of an accused on a charge under s. 377 of the Criminal Code that on 24th June, 1975, being then employed in the National Public Service, he stole the sum of K270 in cash, the property of the State. The accused having admitted on arraignment the truth of the allegations made against him, was later permitted to enter a plea of not guilty under s. 575 of the Criminal Code. The case is reported only in relation to the question of whether what was said by the accused upon the arraignment should be disregarded.

Counsel

K. B. Egan and L. Lucas, for the State.

I. McWalters and M. Taylor, for the accused.

Cur. adv. vult.

17 February 1977

O’MEALLY AJ: The accused is charged under s. 377 of the Criminal Code Act that on 24th June, 1975, being then employed in the National Public Service, he stole the sum of K270 in cash, the property of the State.

When arraigned the accused, who speaks and understands English, admitted the truth of the allegations made against him. However, after I had adjourned and considered the matter, I acceded to the request of counsel for the accused, to enter a plea of not guilty under the provisions of s. 575 of the Criminal Code Act. The ground upon which I exercised my discretion was that counsel said the accused desired to test the prosecution case. Bearing in mind what was said in Nai’u Limagwe’s case[xxx]¹ by their Honours of the Supreme Court I concluded that that was a proper ground for the exercise of my discretion under the section. I was also asked by counsel for the accused to rearraign the accused and take a fresh plea because, upon instructions to him, obtained during the adjournment referred to, it appeared to him that the accused had admitted the truth of the allegations because of misunderstanding and confusion. I declined to accede to that request.

Now, a plea of not guilty operates as a general traverse. It “puts everything in issue” (Carter 4th ed. p. 474) and renders it “incumbent upon the prosecution to prove every fact and circumstance constituting the offence or offences charged in the indictment” (Archbold 38th ed. para. 369). I would therefore think that notwithstanding an admission of the truth of the allegations has been made upon arraignment once a plea of not guilty has been entered under s. 575 the whole matter is at large and the accused is not restricted to contesting the case solely upon the ground upon which the judge exercised his discretion under the section. In Nai’u Limagwe’s case the learned Chief Justice said of s. 575[xxxi]²:

“Its purpose is plainly grounded in the circumstances of the people of this country, a large proportion of whom, despite the expansion of educational facilities, remain illiterate and entirely ignorant of the processes of the law.”

No disagreement with that view was expressed by the other members of the court from whose opinion the Chief Justice dissented on the principal question determined in the appeal. In the present case the Public Prosecutor, who himself holds office under the Constitution and is charged thereunder with the duty of controlling the prosecution function, submitted that a judge should be hesitant to act upon what was said by an accused upon arraignment. Indeed, in this case, he expressly invited me not to consider what the accused said when he was arraigned. If his submission that a judge should be hesitant to act upon what an accused says upon arraignment was meant to apply to all cases, whether the accused speaks and understands English or not, my opinion upon reflection, is that such a view is undesirably favourable to an accused and is not one which in its application would aid the administration of criminal justice. I would limit the application of the principle contained in his submission to cases in which the accused is of the category referred to in the words of the Chief Justice quoted above. In such cases I think it undesirable that any forensic use be made of words an accused utters when thereafter a plea of not guilty is entered by virtue of s. 575. However, where a plea of not guilty has been entered under the section in a case where the accused does speak and understand English different considerations apply. R. v. Hazeltine[xxxii]³ is authority for the proposition that where an accused raises a defence at a trial inconsistent with a plea of guilty to a lesser charge it is open to the prosecution to call evidence before the jury that the accused did plead guilty to the lesser charge where such an admission is inconsistent with the defence sought to be raised on the trial of the charge contained in the indictment. Moreover, in such circumstances the accused ought, if he gives evidence, to be cross-examined on his admission. Cases in which a plea of not guilty will be entered under s. 575 where an accused speaks and understands English would, I think, be rare. However, if upon arraignment he made admissions which were inconsistent with a defence sought to be relied upon, Hazeltine’s case (supra) would justify the prosecution making use of the words uttered at that time and cross-examining the accused upon them if he elected to give evidence. I do not think it necessary that the prosecution would be required to prove the admissions because judges here exercise the dual function of judge and jury. All that would be necessary would be that counsel for the prosecution indicate at the appropriate time that he intends to rely upon what was said.

After reviewing the evidence his Honour made findings of fact upon which the accused was convicted.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Public Solicitor.

[xxx][1976] P.N.G.L.R. 382.

[xxxi][1976] P.N.G.L.R. 382 at p. 389.

[xxxii][1967] 2 All E.R. p. 671.