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Damane v The State [1991] PNGLR 244 (5 August 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 244 - Dinge Damane v The State 

[1991] PNGLR 244

SC412

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DINGE DAMANE

V

THE STATE

Waigani

Kapi DCJ Amet Woods JJ

17 December 1990

5 August 1991

APPEAL - Practice and procedure - Leave to add ground of appeal - Out of time - Exceptional circumstances required - Prisoner appeal - Appeal against sentence - Delay in obtaining legal representation - Notice of ground not objected to by prosecutor - Leave to appeal against conviction granted.

CRIMINAL LAW - Appeal and new trial - Practice and procedure - Leave to add ground of appeal - Out of time - Exceptional circumstances required - Prisoner appeal - Appeal against sentence - Delay in obtaining legal representation - Notice of ground not objected to by prosecutor - Leave to appeal against conviction granted.

CRIMINAL LAW - Practice and procedure - On plea of guilty - Where not supported by depositions - Plea of not guilty to be recorded - Trial before another judge required.

CRIMINAL LAW - Practice and procedure - Alternative verdicts - Where plea of guilty changed to plea of not guilty - Plea to lesser charge available only on re-arraignment.

Held

(1)      An application out of time for leave to amend a notice of appeal should only be allowed in exceptional circumstances and in the discretion of the Court.

Schubert v The State [1979] PNGLR 66 and Birch v The State [1979] PNGLR 75, followed.

(2)      The following matters constituted exceptional circumstances warranting the grant of leave to amend the grounds of appeal against sentence, to include an appeal against conviction:

(a)      the filing of a prisoner appeal;

(b)      the passage of two years from the time the prisoner filed his notice of appeal to the time at which legal representation was assigned to him;

(c)      the fact that the Public Prosecutor had adequate notice of the proposed application to amend and did not oppose the application.

Observations on the rationale and policy behind prisoner appeals.

Held further

(3)      Where a trial judge, upon perusal of the committal depositions, declines to accept a plea of guilty:

(a)      a plea of not guilty should be recorded and the matter should then proceed to trial before another judge of the court;

(b)      where the prosecution elects to accept a plea of guilty to a lesser alternative change in satisfaction of the indictment, the trial judge must re-arraign the accused on the lesser charge as supported by the depositions.

The State v Joe Ivoro [1980] PNGLR 1, referred to.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Birch v The State [1979] PNGLR 75.

Callender v Edwards (1972) 66 QJPR 102.

Kooba Pty Ltd v Hughes [1986] NTSC 43; (1986) 22 A Crim R 241.

Schubert v The State [1979] PNGLR 66.

Smith v Samuels (1976) 12 SASR 573.

State, The v Joe Ivoro [1980] PNGLR 1.

Appeal

This was an appeal against sentence and an application for leave to appeal against conviction for manslaughter.

Counsel:

E Kariko, for the appellant.

K Bona, for the respondent.

Cur adv vult

5 August 1991

KAPI DCJ: The appellant was indicted and arraigned on a charge of murder. She pleaded guilty to the charge. However, it appears from the record that the trial judge having perused the depositions was satisfied that there was a defence of provocation which could have been raised on the murder charge.

After having discussed the matter with counsel, he recorded a verdict of manslaughter and sentenced the appellant to six years imprisonment. I will come back to the question of the proper procedure later on in my judgment.

The appellant in person appealed against the decision of the National Court by filling in the appeal form provided by the court. The reasons for appealing are set out as follows:

“(1)    Sentence was too excessive for unlawful killing.

(2)      It was not the lawyer who represented me, who took instructions but the lawyer who was responsible for the May sitting of the National Court in Kundiawa, therefore, I feel that he did not have a good understanding of the circumstances of my case.

(3)      There were very strong provocative circumstances which led to the crime.”

At the hearing of the appeal, the Public Solicitor represented the appellant. His analysis of the notice of appeal is that it is an appeal against sentence only and not against the conviction. On this basis, he made an application to amend the notice of appeal by adding a ground of appeal against conviction, namely: “That the trial judge erred in entering a verdict of guilty of manslaughter.”

According to the Public Solicitor, this ground of appeal would change the appeal from an application for leave to appeal against sentence to an appeal against conviction and sentence.

The Supreme Court in this jurisdiction has considered applications to amend notice of appeal outside the time limitation in matters in which the amendments seek to raise fresh grounds further to the original grounds of appeal against conviction. In seeking to amend by proposing fresh grounds which relate to the questions of conviction, Prentice CJ and Andrew J in Schubert v The State [1979] PNGLR 66 at 68 said:

“We should like at the outset to voice our disapproval to this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court.”

In exercising its discretion in this case, Prentice CJ and Andrew J went on to say (at 68):

“It appears to us that in the special circumstances of this case where the respondent is not now taken by surprise and where the original adjournment was granted at the request of the respondent, then as no prejudice could be said to have arisen, we propose in the exercise of our discretion, to allow the amendment.”

In exercising his discretion, Raine Dep CJ (at 71) said:

“Speaking for myself, but I think my brethren hold the same view, there is far too much of this going on. I am well aware of the pressure on busy counsel, but the pleader who drafts or settles a notice of appeal should be no less careful with it than with any other pleading. And the pleader knows that there are time limits under the Supreme Court Act 1975 and Rules.

There will, of course, be accidents from time to time, counsel get sick, papers get lost in the mail, the pleader, if not counsel at the trial, is misled by the transcript, and so on. What I complain about is these afterthoughts, when, as I see it, counsel should have entertained the thought long before, rather than a day or so before the hearing day.

None of this is directed at Mr McAlary, he has only just come into the matter, I suppose the previous leader was unavailable.

Despite all the above matters, I have formed the view that leave can be granted here, but the profession must not regard this as a precedent. Why do I take this view? Mainly because of the sudden change of counsel, the fact that Mr McAlary did not waste time on grounds which, as he abandoned them, I imagined he viewed as not up to the mark, and also, whilst not over-impressed with the broad merits of the point taken, I felt it would be useful for the ultimate court of appeal here to say something about it, for it has not been discussed before as far as I am aware.”

In another case, Birch v The State [1979] PNGLR 75, the Supreme Court exercised the same discretion referred to in Schubert’s case. In exercising his discretion, Prentice CJ (at 77) said:

“The tendency for counsel to seek to add further grounds of appeal on the day of hearing or shortly before (a factor presumably aggravated by the introduction at a late stage of overseas counsel who seek perhaps to improve what may appear to them as a weak brief), has now become alarmingly frequent, and threatens the efficiency of the work of this court. Such a course was taken in each of the four appeals brought on this month.

That possibly important points of principle in the criminal law can be raised and argued in such a fashion is unsatisfactory in the extreme, when the court organisation, the commitment to circuit duties of the judges by whom the Supreme Court is constituted, and the infrequency with which short sessions of the court can be mounted, are considered. Practitioners who seek to make such applications where a matter is called on for hearing, can confidently expect that if leave be granted, the hearing of the matter will normally be deferred to a later sitting.”

Raine Dep CJ agreed with the Chief Justice in this matter. Kearney J (as he then was) said (at 85):

“I would refuse leave to add an additional ground of appeal. It is the duty of counsel when settling an appeal to see to it at the time, or reasonably promptly, that all grounds on which it is intended to rely are sufficiently set out. Here no adequate reason has been advanced for inaction in the period of seven months between the lodging of the appeal and its hearing.”

The question raised by this application according to the Public Solicitor is whether the Court has discretion to entertain an application for amendment where the amendment proposed raises a new subject matter of the judgment appealed against. For instance, the original notice of appeal, appeals against only the sentence but the proposed amendment seeks to include a ground relating to the question of conviction.

The Public Solicitor has submitted that the Court has power to amend a notice of appeal which has originally filed against sentence to now include appeal against conviction. He has relied upon Australian State authorities: Kooba Pty Ltd v Hughes [1986] NTSC 43; (1986) 22 A Crim R 241; Smith v Samuels (1976) 12 SASR 573; Callender v Edwards (1972) 66 QJPR 102. However, it is notable from all these decisions that the courts in these cases were dealing with a provision of their respective statutes which is in the following terms:

“No appeal shall be defeated merely by reason of any defect, whether of substance or of form, in any notice or statement of the grounds of appeal, but if upon the hearing thereof, the Supreme Court is of opinion that any objection raised to the notice or statement is valid, it may cause the notice or statement to be forthwith amended.”

A study of the Australian cases reveal that the rationale behind their decision is based on the wording of the provision quoted above. In my view, as we do not have a similar provision in any of our legislation, it is wrong in principle to approach the power of amendment of notice of appeal from the propositions set out in these cases. The power of amendment in this jurisdiction is to be found in the Supreme Court Rules 1984 and it is the duty of this Court to determine the extent of this power and not decisions from another jurisdiction dealing with a different provision.

The Supreme Court in the case of Schubert v The State was dealing with a case in which the original notice of appeal impeached the conviction and the new ground for amendment raised a fresh ground in relation to the question of conviction. With regard to this, the Supreme Court, (Prentice CJ and Andrew J (at 68)) said:

“Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court.”

In such circumstances I take that to be the law. The rationale behind this principle is that once the question of conviction is questioned in a notice of appeal on some ground within the prescribed time, it would be in the discretion of the court as to whether a new ground of appeal going to a conviction may be allowed. The Supreme Court has warned that even in these circumstances the proposal to amend will be allowed only in exceptional cases.

A case in which an appellant appeals against severity of sentence only and then seeks in an application to amend the notice of appeal to raise new grounds relating to the question of conviction after the time has expired, is different. It is different in the sense that, whatever new ground is raised with regard to the question of sentence, the question of conviction cannot be affected by any such ground. An application which raises the issue of conviction for the first time outside the time limitation raises a completely different subject matter. In this regard, Prentice CJ and Andrew J in Schubert (at 68) expressed the following dicta:

“We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down s 27 of the Supreme Court Act 1975.”

In my view, that is a correct statement of the law in these circumstances. Where an appellant fails to appeal within time, either personally or through his lawyer, that is the end of the matter as far as the Supreme Court Act and the Supreme Court Rules are concerned. This is clearly illustrated in the case of Avia Aihi v The State [1981] PNGLR 81. The court held that the right of appeal is regulated by statute and the statute gives an appellant only forty days in which to appeal or to apply for an extension of time in which to appeal. The court found that Avia Aihi failed to appeal or failed to apply for extension of time. She also failed to instruct a lawyer until about twelve months after her sentence. The court found that there was nothing under the Supreme Court Act or the Supreme Court Rules which could restore this right to appeal. That is the law.

That is not the end of the road for the appellant in this case. Having lost the right to appeal against conviction because of the expiration of forty days, she may invoke the power of the Supreme Court under s 155(2)(b) of the Constitution: Avia Aihi v The State. The appellant has not invoked this power in this case.

In my view, an application to amend a notice of appeal to raise a completely new ground of appeal would be an abuse of the power of amendment to get around the time limitation imposed by the Supreme Court Act. I hold the view, therefore, that in these circumstances there is no discretion in the court to allow an appellant to raise a completely new subject matter, namely, the question of conviction.

I now consider the nature of the notice of appeal by the appellant and application by the Public Solicitor to amend the notice of appeal. I have already pointed out that, according to the analysis by the Public Solicitor, the appeal raises question of sentence only and not the conviction. If this was an appeal filed by a lawyer, my analysis of the notice of appeal would be the same as that of the Public Solicitor. However, this is an appeal by the appellant in person and I would not read it with the same strictness. I am prepared to find that the third ground of appeal raises provocation as a defence. Although it is not expressed clearly and precisely, I find that it raises the question of conviction. Having come to this conclusion, the application to amend by the Public Solicitor simply raises a fresh ground of appeal on the question of conviction. The end result of my reasoning is that the facts of this case are similar to the circumstances in Schubert v The State and Birch v The State. Principles enunciated in these cases would be applicable.

A factor which puts this case in a strong position is that the applicant did not have the benefit of a lawyer at the time of filing of notice of appeal and was unable to appreciate the nature of the proposed ground of appeal. In the exercise of my discretion, I would grant leave to amend the notice of appeal as proposed by the Public Solicitor.

I now consider this ground of appeal. After the plea was taken on the murder charge, the trial judge read the depositions. Upon reading the depositions, he discovered that there was some evidence of provocation. He entered a plea of not guilty.

It is not clear from the records as to what procedure was followed by the trial judge after this point in the proceedings. I consider that the proper procedure to follow after the trial judge enters a plea of not guilty where there is a defence raised by the facts of the case is set out in The State v Joe Ivoro [1980] PNGLR 1. I said (at 5):

“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 authorised 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.”

The trial judge did not follow this procedure and more importantly, he did not re-arraign the appellant on the new charge of manslaughter. In my view, he fell into error. I would quash the conviction and sentence and remit the case back to the National Court for the matter to be tried. It is open for the State to indict the appellant on a charge of murder.

It is not necessary to consider the appeal against sentence.

AMET WOODS JJ: The appellant was indicted on one count of murder. Upon arraignment he pleaded guilty. He was represented by a lawyer from the Public Solicitor’s Office who made no application to enter a plea of not guilty. Upon a perusal of the tendered committal depositions however, the trial judge formed the opinion that there was some evidence of provocation. The transcript of the trial judge’s notes record the following only: “I read the deps and after some discussion with counsel record a verdict of manslaughter.” The appellant was thus convicted of manslaughter. On sentence the learned trial judge commented: “I remind myself that this is manslaughter because of provocation and not murder.” He was sentenced to six years imprisonment.

The appellant filed notice of appeal and application for leave to appeal in person on 27 September 1988. He stated three grounds of appeal:

“(1)    Sentence was too excessive for unlawful killing.

(2)      It was not the lawyer who represented me, who took instructions but the lawyer who was responsible for the May sitting of the National Court in Kundiawa, therefore I feel that he did not have a good understanding of circumstances of my case.

(3)      There were very strong provocative circumstances which led to the crime.”

In December 1990, the Public Solicitor granted legal aid to the appellant and filed an amendment to the notice of appeal in the following terms: “That the trial judge erred in entering a verdict of guilty to manslaughter.”

At the hearing the Public Solicitor applied for leave to so amend the notice of appeal. The Public Prosecutor did not oppose the application having been given plenty of notice.

The principal basis upon which the appellant sought to raise the ground against conviction was that it appeared on the record that, upon perusing the depositions and forming the view that some evidence of the defence of provocation was present, the trial judge proceeded to record a verdict of guilty of manslaughter after some discussion with counsel. This it was submitted was a procedural irregularity in law.

We heard arguments on the issues of leave to amend the notice of appeal, leave to appeal and the substantive merits of the appeal against conviction and sentence. We reserved our rulings on the applications for leave.

LEAVE TO AMEND

It is trite that the Supreme Court has on previous occasions strongly disapproved of what it considered a growing practice of parties seeking to add new grounds of appeal at the eleventh hour. Any such applications will only be allowed, in the discretion of the court, in exceptional cases: see Schubert v The State [1979] PNGLR 66 and Birch v The State [1979] PNGLR 75.

Whilst we affirm this principle, its application in these two cases depended on the factual circumstances. In Schubert’s case, leave was granted because of the exceptional circumstances of the sudden late change of counsel, the fact that the respondent was not taken by surprise and so no prejudice could be said to have arisen and the broad merits of the point taken which had not been discussed before.

In Birch’s case, leave was refused because counsel drawing the original grounds of appeal had ample opportunity to have considered the grounds sought to be raised.

There are substantial distinguishing and exceptional circumstances in this application to the circumstances in Schubert and Birch which in our view, warrant the grant of leave.

First, this was originally a “prisoner appeal” in person by the appellant, utilising the notice of appeal form that this Court had caused to be printed and made available throughout the corrective institutions to enable prisoners to lodge appeals in person without having to brief lawyers. This is a significant distinguishing fact from Schubert and Birch who were represented by lawyers at all times who drew their original notices of appeal.

The rationale and policy considerations behind the “prisoner appeal” process should not be lost sight of and clouded up in legal technicalities.

One of the principal purposes is to avoid delay in prisoners communicating with lawyers so that their rights to appeal are not prejudiced because the time to appeal expires.

Secondly, it facilitates easier access by aggrieved prisoners to the Supreme Court to exercise their constitutional rights of appeal and review of decisions against them.

The next significant factor that must not be overlooked is that because the original notice of appeal was lodged by the prisoner in person, it ought not in our view to be subjected to the same rigorous technical scrutiny as do notices of appeal drawn by lawyers. To do so and to strike grounds out as not sufficiently particularising a valid ground of appeal or that a completely new ground of appeal is being sought to be added would frustrate and prejudice rights of appeal because of the fact that aggrieved prisoners did not have lawyers draw up their grounds of appeal.

The principal consideration in the process is that an aggrieved prisoner is enabled the right to have his case reviewed by the court of appeal. To facilitate this primary end of justice, if subsequently to the appeal being lodged by the prisoner in person he is able to obtain the services of legal counsel, privately or from the Public Solicitor and, upon advice and instruction, counsel make application to amend the notice of appeal it cannot and should not be subjected to the same technical criticisms as were applicable in Schubert and Birch.

Even if the proposed ground of appeal sought to be added is against conviction whereas the original one was only against sentence, the technical legal objection that this is, in effect, a new notice of appeal on a completely new ground ought not to frustrate the right to have the conviction reviewed. How is a prisoner, untrained in the law, to know how to frame his grounds of appeals against sentence and conviction?

The next significant exceptional factor is that the Public Solicitor only became involved from 3 December 1990 when he entered appearance and on the same day filed notice of intention to seek leave to amend the notice of appeal and served the same on the Public Prosecutor. The appeal was heard on 17 December 1990.

The technical legal rule about the time period within which applications like this can be made cannot apply with much force because that envisages lawyers acting for parties. That is not the case here. A period of over two years elapsed from the filing of the appeal by the appellant in person on 27 September 1988 to 3 December 1990. How could the appellant have known to make application himself.

The Public Prosecutor quite properly did not oppose the application as he did have prior notice and was not likely to be prejudiced in any way, in our view.

The next significant exceptional factor is that ground (3) of the appellant’s original notice of appeal sufficiently alludes to the evidence of provocation upon which the proposed ground of appeal against conviction is founded.

These are all in our view very exceptional circumstances which warrant grant of leave. We quite frankly cannot conceive of any other decision. To refuse leave in these circumstances would perpetuate grave injustice to the prisoner who had lodged her own appeal without the benefit of legal advice. What possible prejudice or injustice could there be to anyone to grant leave to amend, and to hear the appeal against conviction?

The technical rules of practice and procedures of our courts must be applied and administered with circumspection, with the ultimate purpose of ensuring that justice is not only done but be seen to be done. Our courts must be the people’s courts and not just for the skilled and trained lawyers. We must therefore be wary of being slavishly and legalistically bound down by technical rules of practice and procedure which would have the effect in reality of denying the “people” their rights to access and audience before the courts.

We would therefore grant leave to amend the notice of appeal.

APPEAL AGAINST CONVICTION

It is quite apparent from the notes of the proceedings that the trial judge having perused the depositions, was not prepared to accept the plea of guilty to murder. He records simply that “after some discussion with counsel record a verdict of manslaughter”.

It is clear that what ought to have happened procedurally is that, on the basis of a possible defence of provocation, for the trial judge to have indicated the same to counsel and to enter a plea of not guilty to murder.

If the prosecution wished to prosecute the charge of murder then of course the case would proceed to trial. In that event, the trial would be adjourned to be tried before another judge because the trial judge had read the depositions and under the practice in this jurisdiction presently, it is required of the trial judge to so disqualify himself from the trial.

It is the prerogative of the prosecution, having been informed by the trial judge of his decision not to accept the plea of guilty and the reason for it, to elect whether to prosecute on trial the charge of murder or to accept a plea of guilty to a lesser alternative charge in satisfaction of the indictment, such as manslaughter in this case. In practice, this is the discussion that transpires between the trial judge and counsel, in particular, the prosecuting counsel. This, we believe without a doubt, is the discussion referred to by the trial judge in the notes, referred to earlier.

It can be safely assumed that the prosecuting counsel indicated a willingness to accept a plea of guilty to the lesser alternative count of manslaughter in satisfaction of the indictment. This then is what the trial judge recorded as the verdict.

The learned trial judge erred procedurally. The technical procedure ought to be that, if the prosecution is prepared to accept a plea of guilty to a lesser alternative count, then the accused should be re-arraigned on the lesser count with the necessarily different facts and elements of the offence. To this extent then the learned trial judge did err in simply proceeding to enter a verdict of guilty to manslaughter.

Counsel on appeal has mounted an alternative submission that there were raised in the depositions possible defences of both provocation and self-defence which may have entitled the accused to a complete acquittal. The trial judge ought not to have entered the verdict of guilty to manslaughter but to have vacated the plea of guilty to murder, entered a plea of not guilty and adjourned the case to be tried before another judge.

Quite clearly, as we have stated, the learned trial judge had considered that there was a possible defence of provocation, sufficient to refuse to accept the plea of guilty to murder. That being the case, it is arguable that a defence of self-defence is also raised, by the same factual circumstances.

It is not possible of course to discuss the relative merits of either defence in this Court without having heard counsel, nor is it necessary to do so to determine the merit of the ground of appeal. We are of the opinion that if it is established from the depositions that there is some prima facie evidence of possible defences then that should be sufficient to put the issues to trial, unless of course the parties, prosecution and the defence, agree to a plea to a lesser count in full satisfaction of the indictment.

In the end result, we do consider that the learned trial judge erred procedurally in not properly re-arraigning the appellant on the lesser count of manslaughter, as might have been agreed upon, before recording a verdict of guilty to manslaughter.

The case must be remitted for retrial.

Appeal allowed.

Re-trial ordered.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.