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State v Kinjip [1976] PGLawRp 682; [1976] PNGLR 86 (18 March 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 86 - The State v Manga Kinjip�

[1976] PNGLR 86

N30

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MANGA KINJIP

Mount Hagen

O�Leary AJ

15 March 1976

18 March 1976

CRIMINAL LAW - Practice and procedure - Plea of guilty on charge of wilful murder - Mandatory sentence of life imprisonment - Procedure to be adopted by counsel for the accused.

On a plea of guilty to a charge of murder for which the mandatory penalty is life imprisonment:

Held

N1>(1)����� It being a well established practice in criminal proceedings that a judge should only accept a plea of guilty if it is made in plain, unambiguous and unmistakable terms, the plea of guilty to the charge of murder should only be accepted if the court is satisfied that the accused has had explained to him, and has understood, the various implications of his course of action.

N1>(2)����� An appropriate procedure for so satisfying the court is the presentation to the court of (a) a statement signed by the accused setting out clearly what has been explained to him by counsel and stating unequivocally that, despite that advice, he wishes to plead guilty to the charge; (b) a certificate signed by senior counsel appearing for him that he has explained to the accused the consequences of the plea of guilty, has taken him word by word through the statement, and is satisfied that he fully understands everything that he has explained to him; and further stating, that in so pleading, the accused is not abandoning any defence that might be open to him in the light of his knowledge of the case on his instructions.

Procedure in R. v. David[1966] VicRp 48; , [1966] V.R. 358 adopted.

Trial

On a charge of wilful murder for which the punishment is a mandatory sentence of life imprisonment, the accused pleaded guilty. The trial judge then intimated to counsel various matters as to which he would require to be satisfied before accepting the plea, and at a subsequent time delivered the following written reasons therefore.

Counsel

BJ Cassells for the State

E Jubilee for the accused

Cur. adv. vult.

15 March 1976

O�LEARY AJ:� In this case Manga Kinjip pleaded guilty before me on Friday last to a charge of wilful murder. The punishment now provided by law for that offence is a mandatory sentence of imprisonment for life.

Before the case came on for hearing, Mr. Cassells, counsel for the State, and Mr. Jubilee, counsel for the accused, saw me in Chambers and Mr. Jubilee then informed me that his client intended to plead guilty to the charge. In that event, after some discussion with him, I suggested certain steps that I thought he might take and which I believed would assist me in considering whether or not I should accept the accused�s plea. In the result Mr. Jubilee adopted my suggestion and subsequently I did in fact accept Manga�s plea of guilty to the charge. I said at the time that I would set out in writing my reasons for taking this step and I now do so.

It is well-established that a judge should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable terms. If it is not, he should refuse to accept it and should direct that a plea of not guilty be entered and that the case be allowed to go to trial in the usual way. R. v. Galathan[cx]¹.

The reason for this is obvious when one considers the fundamental premises on which the whole of our criminal law rests, namely, that every person is presumed to be innocent until he is proved guilty, and the onus is on the State to prove beyond reasonable doubt the guilt of any person charged with a criminal offence. No person ever has to prove his innocence, except in those somewhat unusual cases where the legislature has expressly provided otherwise. We are not, however, concerned with any such cases here. When charged with a criminal offence, a person may remain silent. He cannot be required to incriminate himself. In fact, he cannot be obliged to say anything, and if he does say something that incriminates him, a court will only listen to it if it is satisfied that he said it voluntarily and in the exercise of his own free will. When he is brought to trial he may take advantage of any weakness in the case presented by the State; he may test that case to the utmost of his, or his counsel�s, ability; he may rely on any defence that is open to him in law.

When, therefore, a person who is charged before a court with a criminal offence pleads guilty to that offence, he not only relieves the State of the burden of proving it against him, but he also surrenders certain valuable rights which the law affords him. These are rights that have been hard fought for and won over centuries of struggle, and they are jealously guarded and protected by the law. A plea of guilty made by a person in court is the most solemn and formal admission of his guilt that he can make and, having been made, the court must then proceed to sentence him according to law. A responsibility, therefore, rests on a judge to ensure that, before he accepts such a plea, the accused person fully understands the course he has taken and the consequences of it.

Where the offence charged is a grave one and the penalty provided by law heavy, the responsibility of the judge is correspondingly greater. In the present case the offence charged was wilful murder, and the penalty a mandatory sentence of life imprisonment. That penalty is always, of course, a heavy one, but it is more so here in Papua New Guinea where there is no system of parole and no provision for any remission of any part of the sentence for good conduct whilst in prison. Subject only therefore to some change in the law, or to some clemency being shown by the Head of State at some time in the future, a sentence of life imprisonment means exactly that, namely that the person will remain in prison until he dies.

In these circumstances, then, I thought I should only accept a plea of guilty from the accused if I was satisfied that he had had explained to him, and had understood, the various matters to which I have referred above. In cases such as these, various precautions have traditionally been taken to ensure that an accused person pleading guilty does in fact fully understand and appreciate what he is doing. Thus if he is unrepresented, it has always been considered that he should be advised and represented by counsel, and very often by senior counsel. Where that is so, the court of course relies heavily on the advice and assistance that counsel gives him. See R. v. Vent[cxi]²�and Practice Direction[cxii]³.

In the case of R. v. David[cxiii]⁴, which was heard in the Supreme Court of Victoria before Barry J., a procedure was followed which seemed to me to be an appropriate one to follow in the present case. In that case, a statement signed by the accused was presented to the court in which the accused set out clearly what had been explained to him by counsel and stated unequivocally that, despite that advice, he wished to plead guilty to the charge. The statement was supported by a certificate signed by senior counsel appearing for him that he had explained to the accused the consequences of the plea of guilty, had taken him through the statement word by word and was satisfied that he fully understood everything that he had explained to him. He further said that in so pleading, the accused was not abandoning any defence that might be open to him in the light of his knowledge of the case on his instructions.

That was the procedure that I suggested to counsel for the accused in the present case and, as I have said, he accepted my suggestion. He therefore tendered to me a statement by the accused to which the accused had put his mark and a certificate by himself in terms similar to that submitted in David�s case[cxiv]⁵. Having read that statement and the certificate as well as having read the depositions and exhibits put before me, I accepted the accused�s plea of guilty to the charge and sentenced him as required by law.

Verdict of guilty: Sentenced to life imprisonment.

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

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.