Court of Appeal of Fiji

(i) Acted upon a wrong principle;(ii) Allowed extraneous or irrelevant matt matters to guide or affect him;(iii)Misthe facts;(iv) Failed to tako take into account some relevant consideration.

[10] Grounds of appeal urged by the appellant have been identified under the following headings:

Conviction

Ground 1 - Equivocal plea.

Ground 2 – Delay in reporting.

Ground 3- Lack of direct evidence.

Ground 4 – Non-observance of standing orders.

Ground 5 - Admission made in the cautioned interview.

Ground 6 – Failure to construct the crime scene.

Ground 7 – Failure to seize the victim’s clothing.

Ground 8 – No medical report.

Ground 9 – Failure to serve secondary disclosures.

Ground 10 – Failure to produce the appellant within 48 hours of arrest.

Sentence

Ground 11 – Sentence is manifestly harsh, excessive and wrong in principle.

Ground 12 – Learned judge had erred in law and fact in taking irrelevant matters into consideration and not taking relevant maters into consideration.

Ground 13 – Learned judge had erred in law and fact in not taking into consideration the provisions of Sentencing and Penalties Act.

Ground 1 - Equivocal plea

[11] The appellant challenges his plea of guilty on the basis that his counsel from Legal Aid Commission made him plead guilty. However, the appellant had not followed Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) where judicial guidelines were pronounced regarding the issue of criticism of trial counsel in appeal and the procedure to be adopted when allegations of the conduct of the former counsel are made the basis of ground/s of appeal urged on behalf of the appellant. Thus, this ground of appeal cannot be entertained at this stage.

[12] In any event, the trial proceedings reveal that the appellant had steadfastly disputed the matters relating to the 01^st count in the summary of facts but been ready to plead to the other two counts based on the summary of facts. As a result, the DPP had withdrawn count 01 and the appellant pleaded guilty to the 02^nd and 03^rd counts. This shows that the appellant did exercise his own judgment in the plea and not necessarily or exclusively guided by his trial counsel. Therefore, he obviously had not and could not have been forced by his counsel in the mater of the plea of guilty.

[13] The responsibility of pleading guilty or not guilty is that of the accused himself, but it is the clear duty of the defending counsel to assist him to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the accused what the result of a particular course of conduct is likely to be. Defence counsel must be completely free to do his duty, that is, to give the accused the best advice he can and, if need be, in strong terms. Defence counsel was under a duty to advise his client on the strength of his case and, if appropriate, the possible advantages in terms of sentence which might be gained from pleading guilty (vide Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019)

[14] The primary source of a guilty plea is the summary of facts. When the defence counsel indicates to prosecuting counsel that his client will plead guilty, the defence will wish to see the summary of facts. If the facts are accepted by defence counsel’s client, the accused, the plea can proceed. If not, the case must proceed on a not guilty plea and a trial must take place. If there is acceptance by the prosecution of any material requested by the defence to be deleted from the summary of facts, the plea of guilty can still proceed [vide State v Samy [2019] FJSC 33; CAV0001.2012 (17 May 2019)].

[15] It is not for a court to inquire into the advice tendered by counsel to his client. The respondent has not deposed in an affidavit, that is, on oath, as to wrongful advice given by his lawyer. In argument it could be suggested that there was pressure. But the court cannot substitute its own view of what it considers should have been the areas of questioning or advice to be given by a lawyer to his client [vide State v Samy (supra)].

[16] The Supreme Court in State v Samy [2019] FJSC 33; CAV0001.2012 (17 May 2019) and the Court of Appeal in Masicola v State [2021] FJCA; AAU 073.2015(29 April 2021) and Tuimatavesi v State [2021] FJCA 111; AAU032.2016 (3 June 2021) dealt with ‘equivocal pleas’ in great detail and the in the light of the principles enunciated in those decision the appellant ground of appeal had no real prospect of success.

02^nd ground of appeal- Delay in reporting

[17] In the light of the admission of summary of facts and the unequivocal plea of guilty this ground of appeal is simply unsustainable and has no prospect of success.

[18] The Supreme Court in State v Samy (supra) had approved only limited use of disclosure statements (without, however, going on a voyage of discovery looking into the case record and drawing inferences) but disapproved over reliance on them as they are, without a trial, unsworn and untested (unless an agreed fact) and also because, procedurally, upon a plea no formal evidence is taken and the plea cannot be taken as an admission of the bundle of disclosure witness statements.

03^rd ground of appeal - Lack of direct evidence

[19] In the light of the admission of summary of facts and the unequivocal plea of guilty this ground of appeal is baseless and has no prospect of success.

[20] Contrary to what the appellant seems to be suggesting, the complainant was not an accomplice in the crimes. She was only a victim and therefore her account as found in the summary of facts, without any corroborative material, is more than sufficient to sustain the charges.

Ground 4 – Non-observance of standing orders

[21] This ground of appeal is unclear and not compressible. As required by Rule 35(4) of the Court of Appeal Rules, it is not precise. It obviously has no prospect of success at all.

[22] In any event, given the admission of summary of facts and the unequivocal plea of guilty this sort of ground of appeal becomes untenable.

Ground 5 - Admission made in the cautioned interview

[23] The appellant submits that he had been intimidated by the complainant’s uncle who was a soldier to make admissions of the crimes in the cautioned interview.

[24] His plea of guilty should be considered to have made not on the basis of the cautioned interview but the summary of facts. Even if he had made the admissions under intimidation as alleged (he had not made any such complaint to the trial judge on any of the seven occasions he appeared in court) he need not have admitted the summary of facts unless he agreed with them unequivocally.

[25] In any event the appellant had made the cautioned interview when he was in the custody of the police and an outsider would not have been able to intimidate him to make admissions against his will. Further, he had resisted pleading guilty only to the first court but had expressed no reservations on pleading guilty to the 02^nd and 03^rd counts. Therefore, whoever allegedly intimated him would not have done so only in respect of the incident relating to count 01 and not the other two counts.

[26] Therefore, this ground of appeal has no prospect of success at all.
Ground 6 – Failure to construct the crime scene

[27] There was no question of reconstructing crime scenes for countless number of incidents spanning over three years. In any event once the appellant accepted the summary of facts and tendered an unequivocal plea of guilty there was no need for any reconstruction of the crime scenes.

[28] This ground of appeal is completely misconceived.

Ground 7 – Failure to seize the victim’s clothing

[29] The appellant seems to argue that the police should have taken the victim’s clothing and other ‘evidence’ to prove the case.

[30] This ground of appeal is also totally misconceived. Once an accused pleads guilty upon accepting the summary of facts the prosecution need not bring any evidence to prove the case against him. All that is necessary is for the summary of facts to speak to all the elements of the offence and for the judge to be satisfied that the guilty plea was unequivocal.

Ground 8 – No medical report

[31] The appellant submits that there was no medical report obtained.

[32] Not that a medical report was essential for the elements of the charges to be established as long as the summary of facts had referred to all elements of the offences but the state submits that the medical report was anyway attached to the summary of facts.

[33] There is no substance in this ground of appeal at all.

Ground 9 – Failure to serve secondary disclosures

[34] What relevance the so called ‘secondary disclosures’ have in relation to his plea of guilty is difficult to fathom. In any event, the state has submitted that all relevant disclosures had been submitted to the defense and the same had been accepted by him. It is what those disclosures demonstrated that would have persuaded the appellant to take the route of tendering a plea of guilty to the 02^nd and 03^rd counts as the best course of action while successfully urging the DPP to withdraw the 01^st count.

[35] This ground of appeal is not coherent and has no substance in it at all.

Ground 10 – Failure to produce the appellant within 48 hours of arrest

[36] In Heinrich v State [2019] FJCA 41; AAU0029.2017 (7 March 2019) having considered sl previous judicial decisiocisions the Court of Appeal remarked:

‘[32] Considering all the matters discussed above, I am of the view that though an accused in criminal proceedings against him is not prevented from making a collateral attack on his confessional statement on the bases of a breach of Article 13(1)(f) by the investigators, despite Article 44 making specific provision for enforcement of his rights under Bill of Rights, the breach of Article 13(1)(f) by itself would not be a bar for the admission of the caution interview in a court of law. However, the presiding Judge in any criminal proceedings is entitled to consider the fact of wrongful detention, length of time the accused was held under arrest, reasons for the delayed ption of the accused before court, what impact the prolongedonged detention has had on the accused etc. in the broader context of oppression vis-à-vis&#16 voluntoluntariness of his confessional statement towards its admissibility. After the judge rules the caution interview voluntary and admissible, he may consider, whether it should be excluded on the general ground that it may operate unfairly against the accused, if required by the nature of the case or if the circumstances so warrant or demand.

[11] Therefore, since detention beyond 48 hours of arrest without the accused being brought before a court of law has not been held to be absolutely critical and decisive to the admissibility of a confessional statement, it is per se unliko be affecting the vale validity of trial proceedings. In any event, if bringing a person arrested or detained before a court ofnot lthan 48 hours after the time of arrest is not reasonably possible that person coun could beld be so produced as soon as thereafter in terms of sect3(1)(f) of the Cons Constitution.’

[37] Thus, even if the appellant had been produced to court beyond the 48 hour threshold (it is not certain whether it is the case) it would not per se affect his confession or vitiate a conviction; not certainly when the accused makes an unequivocal admission of guilty based on the summary of facts.

[38] Thus, this ground of appeal has no prospect of success in appeal.

Ground 11, 12 and 13 – Sentence

[39] The trial judge had followed the sentencing tariff applicable to juvenile rape i.e.;10-16 years of s of imprisonment [vide Raj v&##16;&State/b>> #160; [2014] FJSC 12; CAV0003.2014 (2ust 2whichow 11- 20 years oars of impf imprisonment - Aicheson v Stav State [2018] FJSC 29; CAV0012.2018 (02 November 2018)
40] Having taken aken 12 years as the starting point, the tthe trial judge had added 06 years for aggravating features and reduced 03 years for the guilty plea and another 02 years for ‘clear record’ and period of remand ( 04 months) ending up with the final sentence of 13 years.