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CHAPTER 12 � GUILTY PLEAS

This chapter offers a guide to the law and practice relating to taking the defendant�s plea of guilty.

12.1 WHAT CONSTITUTES A GUILTY PLEA

A plea of guilty constitutes an admission of the essential ingredients of the offence charged. Collateral facts not essential to the legal definition of the offence, but which may be relevant to sentence as being matters of aggravation or mitigation, are not admitted by a plea of guilty, and may be challenged by the defendant.

Chapter 13.3 discusses the difficulty of making the important distinction between aggravating circumstances that are an actual element of the offence, and those which are not. Facts presented from the bar table and the problem of disputed facts and reliance on custom are also considered there.

A plea of not guilty of the specific offence charged, but guilty of some other alternative offence, is available only if the defendant pleads guilty to some other offence of which he or she could have been convicted by the court on facts arising out of the same circumstances.

The consequences of making such a plea are the same as if the charge to which the plea was made had actually been included on the charge sheet. There is no obligation on the prosecutor to accept such a plea and to abandon the more serious charge. However, the defendant�s lawyer will often have discussed the matter with the prosecution and have advised the client to plead guilty to certain offences if the prosecution agrees not to lead any evidence in relation to the others: see 12.4.

12.2 SUMMARY OF PROCEDURE

The steps may be summarised as follows (see 4.8A):

�           The charge is read to the defendant.

�           If the defendant pleads guilty to the charge, the Magistrate should note the plea provisionally.

�           The prosecutor reads a brief statement of the facts.

�           The Magistrate asks the defendant if he or she wishes to say anything in answer to the charge.

�           If not, the Magistrate may enter a plea of guilty.

�           If the defendant makes a statement which raises a possible defence, the Magistrate should change the plea to not guilty and proceed to trial. An adjournment may be necessary.

�           If the plea of guilty is accepted, the Magistrate proceeds to hear what the prosecution and defence have to say on the question of penalty.

12.3 SIGNIFICANCE OF GUILTY PLEA

By pleading guilty, the defendant waives the constitutional right to require the prosecution to prove the charge. Any opportunity to challenge the evidence which would establish the elements of the charge is lost.

A guilty plea does not, of itself, amount to a conviction, even though it has been accepted by the prosecution. It must also be expressly or impliedly accepted by the Magistrate. Of course, by moving on to ask about prior convictions, or asking the defendant whether he or she has anything to say before sentence is passed, the Magistrate has accepted the plea as one of guilty.

The defendant�s guilty plea in committal proceedings is dealt with in 11.8 and 11.10.

12.4 SAFEGUARDS IN THE LAW AND PRACTICE

12.4.1 The unrepresented defendant

The situation of the unrepresented defendant has attracted much attention from the courts, and no area is of more concern than the decision to plead guilty or not guilty. The subject is introduced in 3.5 and 4.8A. The Constitution emphasises the concepts of presumption of innocence, information in detail, understanding the language and adequate time and facilities: Constitution, s 37(4)(a)-(d), and 6.2.3 above.

12.4.2 The Magistrate�s duty

The court is not obliged to accept a plea of guilty. It is the duty of the Magistrate to make absolutely sure that the defendant understands the elements of the charges to which he or she pleads: Moses Aikabi v Ephraim Tami [1971] PNGLR 1550. Whenever the Magistrate is in any doubt as to whether or not the defendant is pleading guilty, the Magistrate should enter a plea of not guilty and proceed to hear the evidence against the defendant.

Appearances can be deceiving. Magistrates should take considerable care when a defendant appears to plead guilty to a charge. Magistrates have a discretion as to whether or not they accept what appears to be a guilty plea. They should check by questioning the defendant. For instance, if the defendant says, when asked to plead to a charge of assault, �Yes, I hit him, but I did it to stop him hitting me�, the Magistrate should enter a plea of not guilty, because a defence of self-defence has been raised.

After the charge has been read through once, the best way is for the Magistrate then to put the elements of the offence to the defendant one at a time and note his or her replies. This may mean reading the relevant facts that relate to each element and asking the defendant whether he or she accepts those facts. This is so particularly if a question, when translated into Pisin or a local language, sounds like an accusation or a statement. It may be better to put the words into some form such as �The police say �xxx�, have they told it correctly?� and �What do you say about what the police have said?�: see Eliza v Mandina [1971-1972] PNGLR 422.

The Magistrate should also remember that the circumstances of aggravation surrounding the alleged offence have to be proved by the prosecution, and these facts also should be put carefully to the defendant.

When dealing with an unrepresented defendant, a Magistrate should use simple language and avoid the use of words and phrases which, though well understood by Magistrates, police and lawyers, may confuse people not familiar with the courts.

The Magistrate must be cautious and not turn the taking of the plea into an interrogation of the defendant. It is up to the prosecution to prove its case against the defendant, and not for the defendant to convict himself or herself out of his or her own mouth. A lengthy interrogation, in which the defendant is encouraged to tell his or her story, could amount to breach of the defendant�s right under s 37(10) of the Constitution, namely, �No person shall be compelled to be a witness against himself�. Also, the Magistrate must avoid giving the defendant the impression that he or she is expected to admit committing the offence with which he or she is charged.

12.4.3 Improper influence to obtain a guilty plea

Before accepting a plea of guilty in any case in which a police officer is the complainant and the accused is not represented by a lawyer, the Magistrate should point out to the accused that the severity of penalties does not depend on whether he or she pleads guilty or not guilty. The Magistrate might inquire of the accused whether any police officer has suggested that the accused should plead guilty. If the Magistrate does not receive from the accused a prompt and convincing rejection of any such suggestion, the Magistrate should advise the accused to plead not guilty.

This statement was adopted as a �rule of prudence� in R v Cervetto and Ibara, Ex parte Madaha-Rabura [1965-1966] PNGLR 110. In that case, it was clear that a police constable had urged the defendant to plead guilty, by saying that the court would be harder on her if she denied the offence.

12.5 PLEA-BARGAINING

Prosecution and defence, for their own and often different reasons, may agree to avoid a hearing on a charge, perhaps preferring a guilty plea on a lesser charge. These agreements are often described as the process of �plea-bargaining�, which may describe two different practices.

1.         The first and most common practice is that of discussions between prosecution and defence to negotiate the exchange of guilty pleas to some charges for the withdrawal of other charges (sometimes known as �charge-bargaining�).

2.         The second practice, permitted in very few countries, involves discussions between counsel and the trial judge in relation to the sentence likely to be imposed if a guilty plea is accepted. This practice is regarded as unacceptable in Papua New Guinea. It is not the same thing as a situation which may arise after the defendant has pleaded guilty and the sentencing process has begun. The Magistrate may decide to give an advance indication of the likely sentence, or the range within which the sentence is likely to fall. Such advance indication may help to focus the minds of the prosecutor and defence counsel as to what further information might assist the Magistrate in arriving at a final decision.

Where several charges have been laid, the defendant�s lawyer may discuss with the prosecution the defendant�s willingness to plead guilty to some charges, provided the prosecution will agree not to proceed with those that are not admitted. Because the choice of charges that a defendant faces rests entirely with the prosecution, and does not involve the courts, Judges and Magistrates have not directly criticised such practices. However, there is potential for abuse. The police or prosecutor may �over-charge� a defendant in order to negotiate a guilty plea on a reduced, less serious charge. Also, the defendant may not understand the significance of such an arrangement and may fail to appreciate the possibility of realistic defences to the more serious charge. For these reasons, the courts have stressed the importance of ensuring that a guilty plea is not made through mistake, ignorance, or as a result of duress. This applies especially if the defendant is unrepresented. In fact, it would be considered unfair for a prosecutor to approach an unrepresented defendant with a view to conducting plea negotiations.

�Plea-bargaining� is open to abuse, particularly as it is conducted in secret. It is also very much the responsibility of the prosecution. In The State v Jack Gola and Mopana Aure [1990] PNGLR 206, Brunton J considered the role of the Public Prosecutor and State Prosecutor in relation to decisions about proceeding with charges following discussions with counsel for the defence. He said (at 214):

<Case Quotation>

�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.�

<End Case Quotation>

While this judicial concern is understandable, it is difficult to see how the courts can give effect to it. If the Magistrate becomes aware of improper practice involving prosecutor and/or defence counsel in relation to plea-bargaining, a report may be made to the office of the State or Public Prosecutor, or to the Lawyers Statutory Committee: see 3.4. The Magistrate�s concern is that justice be done.

12.6 PROCEDURE FOLLOWING A PLEA OF GUILTY

The procedure on a plea of guilty is the same as that which is followed in relation to a finding of guilt after a trial. The acceptance of the plea constitutes proof of the guilt of the defendant.

12.6.1 Previous convictions

Before other matters are considered, any previous convictions should be put to the defendant at this point. If the previous convictions are admitted by the defendant, or the issue of previous convictions has been dealt with, the court will administer the allocutus, which is the question put to the defendant calling on him or her to take the opportunity to address the court in mitigation of penalty: see 13.2.

If the defendant does not admit the previous convictions, the prosecutor may either abandon the allegations or seek an adjournment in order to produce evidence to prove them.

A previous conviction is taken to mean not only a prior conviction, but also findings of guilt by a criminal court where the defendant has been punished by some form of sanction such as a fine, adjournment of sentence, compensation order, or release on probation subject to conditions.

A person may only be lawfully dealt with as a second offender if the conviction for the first offence has been recorded before both the acts and the conviction which constitute the second offence. Subsequent offences which do not satisfy this test cannot be taken into account as �previous convictions� to increase the penalty that would otherwise be imposed for the present offence. However, subsequent offences may be relevant as part of the offender�s past history.

12.6.2 Withdrawal of guilty plea

Leave to withdraw a plea of guilty after conviction is a discretionary matter. Once a clear plea of guilty has been entered and the court proceeds to consider sentence, the prisoner is regarded as having been convicted, and it is wholly a matter of the court�s discretion as to whether the conviction should be set aside and the plea of guilty vacated. This may be regarded as part of the underlying law of Papua New Guinea. Decisions in other jurisdictions that limit the exercise of this discretion in certain ways should not be followed in this country: see Gabriel Laku v The State [1981] PNGLR 350.