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Jensen v McGrath [1965] PGSC 19; [1965-66] PNGLR 91 (2 April 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 91 - Jensen v McGrath

[1965-66] PNGLR 91

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JENSEN

V.

MCGRATH

Port Moresby

Mann CJ

15 March 1965

2 April 1965

CRIMINAL LAW - Passing valueless cheques - Appeal from District Court - Accused pleaded guilty but made statements inconsistent with guilt - Whether plea of �Not Guilty� should have been entered by magistrate - Police Offences Ordinance, s. 41.

Where the onus of proof lies on the police and the accused makes a statement inconsistent with his guilt, the magistrate may reasonably enter a plea of �Not Guilty�. But where the onus of proof is placed on the accused the magistrate should not automatically change the plea as this might force the accused to give evidence. Where, however, the accused addresses the court in mitigation of sentence and raises a matter which, if true, would be a valid defence, the magistrate should draw the attention of the accused to every part of s. 41 of the Police Offences Ordinance under which he is charged and make enquiry to ascertain whether the accused is under a misapprehension as to the charges brought against him.

The rule of prudence established in Queensland in authorities commencing with Heffernan v. Ward[lxxii]¹�should be closely observed in the Territory where courts commonly encounter the likelihood of misunderstanding and misapprehension on the part of unrepresented defendants.

Cases Cited:

Heffernan v. Ward[lxxiii]²; Hallahan v. Kryloff, ex p. Kryloff[lxxiv]³.

Appeal from District Court.

The facts are sufficiently stated in the judgment.

Counsel:

Ley, for the appellant.

Shaw, for the respondent.

2 April 1965

MANN CJ:� There were four appeals brought by the appellant against the same respondent, relating to separate convictions of the appellant by the District Court at Wau on charges of passing valueless cheques. The cheques in question were for the sums of �1 15s., �2, and two cheques each for �3. On each charge the appellant was convicted and ordered to pay a fine and in default was sentenced to imprisonment. The appellant is now living in Australia and has taken these proceedings seeking to have the convictions set aside.

It appears that just before the appellant left the Territory and whilst he was arranging his affairs prior to departure, he had an account of �84 4s. 8d. to pay. This was more than the amount which he had to his credit in his bank account, but he said that he was expecting a substantial sum of money to be paid into his account by the Administration in settlement of amounts owing to him. The amount which he expected would have been enough to clear this cheque and leave a balance to the appellant�s credit. He post-dated the cheque to allow for the passage of the few days until he expected the cheque to be paid into his account. Then the appellant made out the smaller cheques for incidental petty cash expenditure and he had these cashed. It is not clear at what time the large cheque was presented at the bank. The smaller cheques were dishonoured.

The police took action immediately and the appellant was warned not to attempt to leave. He had a conversation with a police sub-inspector and according to the appellant�s account of what took place the sub-inspector told him that on a charge of giving valueless cheques the accused person was guilty even if he thought that the cheque would be honoured at the bank if, in fact, it was dishonoured on presentation for payment. Accordingly the appellant when charged on the four informations pleaded guilty in each case and relied on a reasonable and honest belief that the cheques would be met, not as a defence to the charges, but as a matter to be taken into account in mitigation on the question of punishment.

The material before me does not make it quite clear what was the final up-shot of these transactions, but the Crown has investigated the case and has satisfied itself that the outstanding claims have all been discharged by the appellant.

The appellant�s account of the transaction and of his belief that the cheques would be met received some support from the evidence of the sub-inspector of police who said that when he first interviewed the appellant he was told by him that he expected money to come in from the Administration but that at the time of writing the cheques there were insufficient funds to cover the sum of the cheques.

The section under which the charges were laid is s. 41 of the Police Offences Ordinance of New Guinea, the first part of which might well give a layman the impression that the offence consists merely of giving a cheque which is in fact subsequently dishonoured.

It was argued on the appeal before me that the magistrate should have entered a plea of not guilty notwithstanding that the appellant pleaded guilty to the charges. Not infrequently we have had cases where a plea of guilty, or an admission of guilt, is tendered to the court but is coupled with some statement by the accused showing that he is not really admitting guilt, or is relying on some assertion which is inconsistent with his guilt. In such circumstances it is clear that the court should intervene and draw the attention of the accused person to the inconsistency, and make sure that he is aware of the fact that he had disclosed what may be a defence. In the present case it appears that the appellant had not adverted to the part of the section which provides for the defence of reasonable grounds for belief that the cheque would be paid and lack of intent to defraud. The onus of establishing these facts is cast upon the accused party but, subject to questions of onus of proof, it is clear that the substance of the offence is not merely giving a valueless cheque, but giving a valueless cheque without reasonable grounds for the belief specified and with intent to defraud. If the offence were stated in this way and the onus of proof followed the normal pattern, it should be clear to the magistrate that what the accused was saying was inconsistent with his guilt, and the magistrate could safely put a firm view to the accused that this amounted to a plea of not guilty and that such a plea should be entered. However, in a case where the onus of proof is placed upon the accused party, the magistrate is in rather a more delicate position, because if he tells the accused firmly that he is really pleading not guilty he might get into the position of forcing the accused party to give evidence. This, of course, might embarrass the defence. It is possible that in some cases an accused person would want to be found guilty on his own plea, and after conviction rely on the circumstances which might have afforded him a defence, merely in mitigation. Accordingly I do not think that it follows that as soon as the accused person reveals something which could, if he were prepared to go into the witness box, amount to a defence, the magistrate should automatically change the plea.

It does appear, however, that when the appellant was addressing the court in mitigation he did raise something which, if true, would be a valid defence. In these circumstances I think that the magistrate should have drawn the attention of the accused to every part of s. 41, and made some enquiry which, in the actual case in question, would inevitably have revealed that the appellant was under a misapprehension as to the charges brought against him. If this had occurred it should have become clear that a plea of guilty was not appropriate and the appellant should then have been invited to ask the court to change his plea or consider his position with care.

I reached the conclusion that the conviction and fine should be set aside and announced that decision, stating that I would subsequently give my reasons in writing. It seems to me that at least the appellant is entitled to have the case re-heard upon a plea of not guilty. Since the case was heard it appears that the money which was expected from the Administration was paid into the bank and all these outstanding transactions have now been satisfactorily discharged. In the circumstances I think that no useful purpose would be served by sending the case back for rehearing since the facts asserted by the accused, and which would be relied upon by him to establish his defence, are not now challenged, and it seems clear that the prosecution would fail. Since the appellant is now in Australia there would be no justification for hearing the case again when the ultimate conclusion appears to be certain.

For the benefit of magistrates who may not have convenient access to law reports, I should perhaps refer briefly to two recent Queensland cases where the practice of the Queensland courts has been specified.

In Heffernan v. Ward (1) on a charge for dangerous driving, the defendant pleaded guilty, influenced by advice given to him by a police officer who was the driver of the other vehicle directly involved in the accident which took place. The defendant thought that if he pleaded guilty he would be dealt with more leniently but was surprised to find that the police officer, who had given him this advice, gave evidence against him placing great stress on the speed of the defendant�s car and other matters which the defendant was prepared to contest strongly. On appeal Stanley J. expressed the following view that as a matter of prudence �before accepting a plea of guilty in any case in which a policeman is the complainant and the accused is not represented by counsel or solicitor, the stipendiary magistrate would be well advised to point out to any such accused that the severity of penalties does not depend on whether he pleads guilty or not guilty, and to enquire whether anyone connected with the police force has suggested that he should plead guilty; and if the magistrate does not receive from the accused a prompt and convincing disclaimer of any such suggestion, he should suggest to the accused to plead not guilty and emphasise the impropriety of any such advice.�

In Hallahan v. Kryloff, ex p. ⁽²⁾, the defendant pleaded guilty before a stipendiary magistrate to a charge of vagrancy. The Full Court expressed agreement with the view of Stanley J. expressed in Heffernan v. Ward[lxxv]⁴�(supra) and repeated by him in Hallahan�s case[lxxvi]⁵. The Full Court added one further point, �that in a case at which my learned brother�s remarks were directed it would also be prudent on the part of the magistrate to intimate positively to the person who is before him his right of putting everything he wishes before the magistrate, provided it is relevant to the charge and then getting down on the record the agreement of the accused person that he has said all that he wishes to say� - see Wanstall and Stanley JJ.

Without imputing any suggesting of malpractice on the part of the police, I think that this rule of prudence, so firmly recognized in Queensland, should be closely observed in the Territory where, as is well known, we commonly encounter the likelihood of misunderstanding and misapprehension on the part of unrepresented defendants. In many circumstances, quite apart from those which arise from some officer failing to realize that he is in a partisan position and that he should strictly avoid giving advice which may influence the course of action taken by an unrepresented defendant, one of the oldest, but still the best, methods of overcoming difficulties of this kind is to bring everything out into the open before the court which has the responsibility of determining the case in the first instance.

Appeal allowed.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the defendant: W. A. Lalor, Public Solicitor.

[lxxii][1959] Qd.R. 12.

[lxxiii][1959] Qd.R. 12.

[lxxiv][1960] Q.W.N. 18.

[lxxv][1959] Qd.R. 12.

[lxxvi] [1960] Q.W.N. 18.