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State v Gola [1990] PGNC 98; [1990] PNGLR 206; N893 (5 June 1990)

N893

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

JACK GOLA AND MOPANA AURE

Lae
Brunton J

5 June 1990

CRIMINAL LAW - Practice and procedure - Indictments - Laying of - Role of State prosecutor - Role of trial judge - Plea bargaining - Discussion of.

The power of the Public Prosecutor and the State Prosecutors deriving from the Constitution, s 176 and s 177, the Public Prosecutor (Office and Functions) Act (Ch No 338), s 4(1) and the Criminal Code (Ch No 262), ss 524, 525 and 526, to lay indictments is an absolute one; it is for the Prosecutor to choose the charge and to decide what plea will be accepted: the role of the judge is to offer observations on the course of action proposed in the light of which the Prosecutor may reconsider his position.

Discussion of the respective rights and duties of the trial judge and prosecuting counsel and the matter of plea bargaining.

The need to maintain public confidence in the legal system requires that plea bargaining and the appearance of having decisions made out of court between opposing counsel should be avoided.

Where an indictment is presented for a lesser offence than the evidence on deposition discloses, the judge may offer observations in the light of which the prosecution may reconsider its position. It may however be more appropriate in particular cases to present an indictment on the more serious charge for which there is proper evidence to go to the tribunal of fact and to let the court decide.

Cases Cited

The following cases are cited in the judgment.

R v Coward (1979) 70 Cr App R 70.
R v Marshall [1981] VicRp 69; [1981] VR 725.
R v Ryan (1977) 67 Cr App R 177.
R v Simbene Dandemb [1969-70] P&NGLR 207.
R v Soanes (1948) 32 Cr App R 136.
R v Turner [1970] 2 QB 321; (1970) 54 Cr App R 352.
The State v Principal Magistrate, District Court, Port Moresby; Ex parte Public Prosecutor [1983] PNGLR 43.

Trial

On the trial of an accused for unlawfully wounding, the accused pleaded guilty and the depositions were tendered. The trial judge, on reading the depositions, formed a view as to other more serious charges that might have been laid which he discussed with counsel. The following reasons were delivered for his entering a verdict of guilty on the indictment as laid.

Counsel:

M Peter, for the State.
M Konido, for the accused.
Cur adv vult

5 June 1990

THE CHARGE

BRUNTON J.: The State Prosecutor presented an indictment against the accused alleging an offence of unlawfully wounding contrary to s 322 of the Criminal Code (Ch No 262).

THE BRIEF FACTS

For the purpose of arraignment the State Prosecutor presented the brief facts of the case to the Court:

"... on the 1st of April 1989, in Lae, the accused Jack Gola and Mopana Aure got together with the victim Kidomore Joseph at the PNG Sand and Gravel Pit, Butibum. Between 9 pm and 9.30 pm the two accused carried Kidomore, a woman, from where she was sleeping, to the office of the PNG Sand and Gravel Pit. She was thrown down, she sustained injuries [that] resulted in bleeding to her face. Both accused were drunk. And the prosecutrix was asleep."

At that point the Court asked the State Prosecutor —

Court: "Those facts appear to me, at least, to lead up to a situation that is close to attempted rape. Does the State have evidentiary problems with attempted rape and that is why you are accepting something less?"

State Prosecutor: "That is correct."

Court: "What is the nature of the evidentiary problem?"

State Prosecutor: "Lack of corroboration."

Court: "I intend to arraign in terms of the brief facts you have given."

The accused were arraigned on charges of unlawful wounding and pleaded guilty to the indictment. The depositions were tendered. After the reading of the depositions the following interchange between the Court and counsel took place.

Court: "Mr Peter, I am troubled after reading the depositions that this matter is an unlawful wounding case — punishable by a maximum of three years in hard labour. The accused Jack Gola admitted in his section 103 to the learned magistrate: ‘we two carried her off and hit her ... the reason she and I were naked [was] because I intended to have sexual intercourse with her.’ These admissions would support a charge of abduction under section 350(1)(a) of the Code, punishable with a maximum of seven years in hard labour, and a charge of attempted rape, punishable with a maximum of fourteen years. Why have you proceeded to accept a plea to unlawful wounding which is punishable by a maximum of three years?"

State Prosecutor: "The decision was not taken lightly — it was taken with some reservations. It was the plea put to us by the defence [and formed after] interviewing the prosecutrix, and ascertaining there was no medical report, no record of interview. There was a further problem of identification by the prosecutrix."

Court: "But the section 103 statement by Jack Gola admits to carrying her away?"

State Prosecutor: "That was a section that I did not consider with my learned friend in his plea bargaining. Those are my explanations."

Court: "Mr Konido: You have heard what I have said — is there anything you would like to say?"

Defence counsel: "These two accused have been arraigned on charges of unlawful wounding. Your Honour has to find a verdict because they have pleaded not guilty."

The Court then considered the matter and gave a short ex tempore ruling:

"The Constitution and the statutes give the power to the State Prosecutor to lay an indictment. Where an indictment is laid and there is a plea to a lesser charge than is alleged on the indictment then a judge, according to English common law, could scrutinise the propriety of accepting the plea to a lesser charge. But over-all I must be guided by the law in R v Simbene Dandemb [1969-70] P&NGLR 207 at 215-216:

‘The law relating to the quashing of indictments in England has been set out by Lord Goddard LCJ in R v London Country Quarter Sessions Chairman; Ex parte Downes [1954] 1 QB 1 at 6, in the following terms:

"Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try ..."

This was generally accepted by the House of Lords in Connelly v Director of Public Prosecutions [1964] AC 1254 as being a correct exposition of the law on the subject except that Lord Devlin (after dwelling [at 1353] on the danger of abuse and injustice to defendants if the prosecution in respect of the same facts were at liberty to act indiscriminately so long as for each prosecution it could find a different offence in law) proceeds to add a fifth ground to that given by Lord Goddard, namely, that if there is a gross abuse of process the court can act to remedy the situation by refusing to allow the indictment to go to trial.’

In my view this is not a case of gross abuse and injustice to the defendants. The State has the power to choose the charge. I have accepted the indictment. The accused are entitled to a verdict. I Will publish further reasons later. I enter the plea subject to the allocutus."

The Constitution, s 176(3), reads:

"(3) Subject to this Constitution:

(a) in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but

(b) nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization)."

The importance given to the insulation of the office of the Public Prosecutor in s 176(3)(a), is emphasised by the fact that the exception in s 176(3)(b) has to be tabled in Parliament:

"Section 176(4) The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with a Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea."

The functions of the Public Prosecutor referred to in s 174(3)(a) are set out in s 177(1)(a) of the Constitution:

"(1) The functions of the Public Prosecutor are:

(a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and

(b) to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office."

The Public Prosecutor (office and Functions) Act (Ch No 338) at s 4(1)(c), says:

"The Public Prosecutor:

(c) Shall control and exercise the prosecution function of the State."

These constitutional and statutory provisions are subject to s 155(3) and s 155(4) of the Constitution, because s 176(3) of the Constitution is prefaced with the words "subject to this Constitution".

The Supreme Court, per Pratt J (Kapi DCJ and Bredmeyer J agreeing) in The State v Principal Magistrate, District Court, Port Moresby; Ex parte Public Prosecutor [1983] PNGLR 43 at 48, when referring to the Public Prosecutor (Office and Functions) Act 1977, s 4(1) said:

"In all these matters it can be seen that the discretion is the prosecutor’s absolutely and alone. It is not given to one of his staff, it is not given to the Minister or the Secretary for Justice or to the Police Commissioner or to a magistrate grade V. It may well be that should the Public Prosecutor wish to delegate his discretion under this section, he may do so but that is not of concern in this case."

One may add, that the discretion to prosecute is the prosecutor’s absolutely and is not given to the trial judge.

The Criminal Code is also helpful in indicating the respective powers of the State Prosecutor and judges as they apply to indictments.

Section 524(1) of the Criminal Code says:

"(1) No indictment may be presented in the National Court except in accordance with Sections 525 and 526."

The procedure by which a State Prosecutor makes the decision to prosecute is stipulated at s 525 of the Criminal Code:

"525. Procedure for indictment.

(1) Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may:

(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b) decline to lay a charge.

(2) An indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor.

(3) Where the Public Prosecutor or a State Prosecutor declines to lay a charge, he shall, as soon as practicable:

(a) sign a declaration in duplicate to that effect; and

(b) cause the original of the declaration to be filed in the National Court; and

(c) deliver the duplicate of the declaration to the person committed —

(i) if the person is in custody - by sending it by post or messenger to the person having custody of him; or

(ii) if the person is not in custody — by delivering it to him personally or by sending it to him by post to his last known address.

(4) On receipt of a copy of a declaration under Subsection (3), any person having custody of the person named in it shall immediately release him from custody in relation to the charge to which the declaration relates." (Emphasis added.)

It is clear from s 525(1)(a) that it is the Public Prosecutor or the State Prosecutor who is to consider the evidence from the committal proceedings and who is to frame the indictment.

The court is given limited statutory powers under the Criminal Code to order that an indictment be amended under s 525 of the Criminal Code, and the accused may move to quash the indictment under s 558, but if the accused does not apply to quash the indictment, the accused must either plead to it, or demur (s 560(1)).

THE ENGLISH CASES

At first glance the English cases appear to favour a certain amount of intervention by the judges. In the case R v Soanes (1948) 32 Cr App R 136, the trial judge refused to allow the Crown to accept a plea to infanticide on the ground that there was no indication in the deposition of the circumstances which must exist before a verdict of infanticide (as opposed. to murder) could be returned.

Speaking on behalf of the Court of Criminal Appeal (Goddard LCJ, Humphreys and Birkett JJ) Lord Goddard said (at 137-138):

"While it is impossible to lay down a hard-and-fast rule in any class of case on when a plea for a lesser offence should be accepted by counsel for the Crown — and it must always be in the discretion of the judge whether he will allow it to be accepted — in 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 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 a verdict of guilty of the lesser offence only. In this case we think that the learned judge was not only right, but, 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."

However care needs to be taken in considering the application of this passage to Papua New Guinea because of the different statutory context in the United Kingdom, and because opinions appear to have moved somewhat since 1948. In the United Kingdom the discretion exercised by a judge is in the context of the Criminal Law Act 1967 (UK), s 6(1) and s 6(5), which allows an accused to plead not guilty to the offence on the face of the indictment, but guilty to some other offence. There the judge has a discretion.

That is quite a different thing from a judge exercising a discretion in relation to the offence charged on the face of the indictment being able to tell the prosecutor to change the charge on the indictment before the court.

The case of R v Coward (1979) 70 Cr App R 70, in part, involved the counsel for the prosecution, in a case where the indictment charged the rape of a 14-year-old girl, approaching the trial judge in chambers (with defence counsel) to see if the judge would accept a plea to a lesser offence. The Court of Appeal (Criminal Division) (Lawton LJ, Bristow and Hollings JJ) said, per Lawton LJ (at 76):

"We wish to call attention to one other matter. Miss Blundell-Jones felt that she required the judge’s approval in his room for the course she proposed to take. She has said in this Court that the case was a delicate one, because nobody wanted this young girl who had been the victim of these activities to be exposed to cross-examination unless it really was necessary. She was of the opinion that the case was a border line one. She felt, in the exercise of her discretion, that she ought to be supported by the learned judge’s opinion given in chambers. We do not criticise her for what she did in this case. But we wish to say this. It is for prosecuting counsel to make up their minds what pleas to accept. If the judge does not approve, he can say so in open court, and then the prosecution will have to decide what course to take. It is bad practice for counsel as a matter of course to go to see the judge behind the scenes in order to get advice about pleas. It is to be hoped that this coming and going between the Bar and the judge will be confined in the future to cases of an exceptional nature and will not become a habit." (Emphasis added.)

The latest edition of P F Archbold, Pleading, Evidence & Practice in Criminal Cases (43rd ed, 1988) Vol 1, s 4.47a makes reference to the Report of Mr Justice Farqueharson’s Committee on the Role of Prosecuting Counsel (May 1986).

The report, so far as it is applicable to the circumstances of this case, starts by noting that the respective rights and duties of the judge and prosecution counsel have never been clearly defined, and that the most likely explanation for this is that when differences arose they were usually resolved by discussion.

The Report goes on to say (at 340-341):

"We approach the problem by considering whether Counsel acting on behalf of the Prosecution may or should decide to offer no evidence on any particular count in an indictment or on the Indictment itself, without the approval of the Judge. When taking such a decision it is usual for Counsel to explain his reasons for doing so to the Judge. It is open then to the Judge to express his own views and if he disapproves of the course taken by Counsel he will no doubt say so. In those circumstances Counsel is under an obligation to reconsider the matter, both personally and with his junior, if he has one, and his Instructing Solicitor. Whilst great weight should be given to the Judge’s view, if counsel still feels that the prosecution’s decision is the correct one then he must persist in the course he originally proposed. He will have much more information about the background and weight of the case than the Judge who will only have the depositions and exhibits. Counsel is therefore in the best position to make the decision and although one would expect that Counsel would rarely have to take the course of offering no evidence in defiance of the opinion of the Judge, in the final analysis the decision must be his.

There is now no doubt that where counsel for the Prosecution wishes to proceed on a properly laid Indictment the Judge cannot prevent him doing so because he is of the opinion that the evidence is too weak for the Prosecution to succeed. See R v Chairman of London County Sessions; Ex parte Downes (1953) 37 Cr App R 148. Nor may the judge refuse to allow the Prosecution to proceed on an Indictment on the grounds that he disapproves of the course being taken unless it amounts to an abuse of the process of the Court. The explanation must be that Counsel for the Prosecution has the carriage of the proceedings and it is for him to decide in a particular case whether to proceed or not to proceed.

In accepting a plea of guilty to a lesser offence or offences Counsel for the Prosecution is in reality making a decision to offer no evidence on a particular charge. It follows in our opinion that if Counsel is entitled to decide whether he should offer no evidence on the Indictment as a whole, as we think he is, then correspondingly, it must be for him to decide whether or not to proceed on a particular count in an Indictment. This is subject to three important qualifications:

(a) It is sometimes the practice when Prosecution Counsel decides to accept a plea to a lesser count for him to invite the approval of the Judge. Counsel may feel it appropriate to do so in cases where it is desirable to reassure the public at large that the course proposed is being properly taken, or when he has been unable to reach agreement with his Instructing Solicitor.

As we have already said, Counsel is not bound to invite the Judge’s approval but if he does so, then he must of course abide by the Judge’s decision. ‘When counsel for the Crown invites the Judge to give approval to some course which he wishes to take the seeking of that approval is not idle formality. The Judge in such circumstances is not a rubber stamp to approve a decision by Counsel without further consideration, a decision which may or may not be right’ R v Broad (1978) 68 Cr App R 281, per Roskill LJ.

(b) While the Judge will not have all the information available to Counsel he will have derived considerable knowledge of the case from the depositions and exhibits; certainly enough to enable him to decide upon the right sentence after receiving the appropriate reports and hearing any mitigation. There may well be cases where the Judge so disapproves of the decision taken by Prosecution Counsel to accept a plea to a lesser offence that he cannot consistently with his duty, as he sees it, proceed to sentence on that basis. The Judge may take the view that Counsel’s decision proceeds from caprice or incompetence, or simply that he entirely disagrees with the decision however carefully Counsel has arrived at it. The Judge cannot in such circumstances be expected to lend himself to a process which in his judgment amounts to an abuse or to injustice. While for the reasons already given the Judge cannot insist on Prosecution Counsel proceeding on the major charge he may decline to proceed with the case without Counsel first consulting with the Director of Public Prosecutions, on whether he should proceed in the light of the comments the Judge will have made. In an extreme case he may think it right to invite Counsel to seek the advice of the Attorney-General. In the final analysis, when these steps have been taken, the Judge has no power to prevent Counsel proceeding. Indeed any attempt by him to do so would give the impression that he was stepping into the arena and pressing the Prosecution case. However, we are of the opinion that the occasions when counsel felt it right to resist the Judge’s views would be rare.

These views are in accordance with the Guidelines to Prosecution Counsel given by the Bar Committee of the Senate of the Four Inns of Court and the Bar (dated 9th May, 1984) to the following effect:

‘Counsel may in his discretion invite the trial Judge to assist him in his decision (whether to offer no evidence or to accept or to refuse pleas tendered by the accused) but he is never under a duty to do so nor should he do so as a means of avoiding his personal responsibility ... Counsel should in any case be ready to explain his decision in open Court and to reconsider it in the light of any observations made by the trial Judge.’

This guidance has recently received the approval of the Court of Appeal and must now be taken to be the proper approach for a Judge when he is informed by Prosecuting Counsel that he does not intend to proceed: see R v Jenkins (1986) 83 Cr App R 152.

(c) (decisions made to offer no evidence during the course of the trial ..."

The overall thrust of sentiment in the Report is that it is for the State Prosecutor to choose the charge, and to decide what plea is to be accepted; that the role of the judge is to offer observations on the course of action proposed; and that it is for State Prosecutor to reconsider the position in the light of any observations made by the trial judge.

In the present case, it appeared to me from the s 103 statement that there was evidence to support an indictment for abduction. The State Prosecutor decided to proceed with a charge of unlawful assault. The constitutional and statutory framework in Papua New Guinea appears to prevent a judge from interfering further, and so I accepted the plea of guilty from the two accused to an indictment charging them with unlawful wounding.

PLEA BARGAINING

The matter of "plea bargaining" was raised in the interchange between counsel and the Court. In R v Marshall [1981] VicRp 69; [1981] VR 725 at 732, the Full Court of the Supreme Court of Victoria said:

"The expression ‘plea bargaining’ is sometimes used to cover discussions between the Crown and an accused’s advisers concerning the charges upon which an accused will be presented for trial and including indications that the accused is prepared to plead guilty to certain offences. Since, in Victoria, the decision as to the charges upon which a person is presented rests with the Crown and does not involve the Court (see Crimes Act 1958 (Vic), s 353 and R v Parker [1977] VicRp 3; [1977] VR 22) we shall say nothing about any such discussions."

Another sense in which the term "plea bargaining" is sometimes used covers discussion in which the trial judge takes part.

The English Court of Appeal (Criminal Division) issued a practice direction in the case of R v Turner (1970) 54 Cr App R 352 at 360-361 regulating the practice of discussions in which a trial judge takes part. That case was applied in R v Ryan (1977) 67 Cr App R 177.

The essence of the system of law that has developed from English and Australian antecedents, in Papua New Guinea, is that the system of justice must be open, above board, and capable of respect by the public. While the Constitution and the statutes vest in the Public Prosecutor the discretion to choose the charge on which to lay an indictment, the exercise of that discretion must be such as to appear to conform with the expectations of society. It may well be that in some cases the State Prosecutors feel that the evidence and witnesses may not be sufficient to obtain a conviction on a trial, and that it is better to accept a plea to a lesser charge, rather than end up with an acquittal. But this has to be balanced against the need to maintain public confidence in the system as a whole. Certainly the appearance of having decisions made out of court between opposing counsel as to what charge is to be preferred, and what charge is to be pleaded to, should be avoided. A proper view may be to present the case to the court on a more serious charge for which there is proper evidence to go to the tribunal of fact, and to let the court decide. If the evidence is there, and if it is proper in the sense of coming from witnesses of truth, then it is for the tribunal of fact to adjudicate upon, rather than for counsel to determine in private discussions. In this case the Court does not know what has transpired, if anything, between counsel. Neither does the Court know fully the extent or the strength of the evidence as it was available to counsel. This is an area of law and practice that the English Courts have some difficulty with, and in the circumstances it is better that guidance be given, rather than ignoring the difficulties altogether.

_______________

Lawyer for the State: Public Prosecutor.
Lawyer for the defence: Public Solicitor.