A plea of guilty is a conviction on the accused’s own admission, and appellate courts are slow to go behind it. But the plea must be a real one. The National Court’s own practice, and the Supreme Court’s cases, treat a plea that the facts do not support as no plea at all.
The right of appeal survives the plea
A person convicted by the National Court may appeal to the Supreme Court (a) against his conviction, on any ground that involves a question of law alone; and (b) against his conviction, on a question of mixed fact and law; and (c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal (i) that involves a question of fact alone; or (ii) that appears to the Supreme Court to be a sufficient ground of appeal; and (d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
“Convicted” includes convicted on a plea. Whether a plea was properly taken and whether the admitted facts constitute the offence are questions of law, so they fall within section 22(a) as of right.
When a conviction on a plea is set aside
The Supreme Court held that the National Court has a discretion to allow a plea of guilty to be withdrawn at any time up to the final disposal of the case, and gave guidance on arraignment: an accused is not required to plead guilty or not guilty to specific questions, and where the accused’s statements on the allocutus conflict with the plea the Judge must evaluate them with the presumption of innocence in mind, which may require a plea of not guilty to be entered: Laku v The State [1981] PNGLR 350.
| Ground | What it means |
|---|---|
| Equivocal plea | What the accused said on arraignment or the allocutus was not an unqualified admission of every element of the offence |
| Facts do not disclose the offence | The brief facts or depositions, taken at their highest, do not amount to the crime charged |
| Defence on the depositions | The material before the Judge raised self-defence, provocation, honest claim of right, or another defence that was not put to the accused |
| Plea not understood | The charge or its elements were not explained in a language the accused understood, or the accused was misled about the consequences |
| Pressure or bad advice | The plea was induced by improper pressure or by advice so wrong that the plea was not a free choice; this is the hardest to make out and needs affidavit evidence |
In Damane v The State [1991] PNGLR 244 the Court also held that where a trial Judge, having read the depositions, declines to accept a plea of guilty, a plea of not guilty should be recorded and the matter should proceed to trial. The safeguard that protects an accused at first instance is the same one the Supreme Court enforces on appeal.
Appeals against sentence after a plea
A plea of guilty is usually the main mitigating factor, and a sentence appeal argues that the Judge gave it too little weight, applied the wrong range, or overlooked other mitigation. Leave is required under section 22(d), and the test is the ordinary one: an identifiable error in the sentencing discretion, or a sentence so manifestly excessive that error is inferred. Section 23(4) allows the Court to substitute any sentence warranted in law, including a heavier one, so an appellant who pleaded guilty to a serious offence and received a lenient sentence should take advice before appealing. See appealing against sentence and whether the Supreme Court can increase your sentence.
Prisoner appeals and amending grounds
Many appellants who pleaded guilty file the Second Schedule prisoner form against sentence only, and later, once represented, want to add a ground against conviction. Damane holds that leave to amend a notice of appeal out of time is granted only in exceptional circumstances, though it found them in a prisoner appeal where two years passed before a lawyer was assigned and the Public Prosecutor did not oppose. Section 29 gives 40 days from conviction, extendable by a Judge on application made within that time. See how a prisoner appeals without a lawyer.
What the Court can do
If the plea was not a true plea, the Court quashes the conviction under section 23 and, because there has been no trial on the merits, ordinarily orders a new trial under section 28 rather than entering an acquittal. The appellant is then arraigned again in the National Court. See how to appeal a criminal conviction and the grounds of a criminal appeal.
Sources
- Supreme Court Act (Chapter 37) — ss 22, 23, 28, 29
- Laku v The State [1981] PNGLR 350
- Damane v The State [1991] PNGLR 244
- Supreme Court Rules 2012 — O 7 rr 1–10; Second Schedule
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.