IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0051 OF 2003S

Between:

PHILIP THOMAS HEFFERMAN
Appellant

And:

THE STATE
Respondent

Hearing: 3rd December 2003
Judgment: 12th December 2003

Counsel: Mr. D. Sharma for Appellant
Mr. S. Leweniqila for State

JUDGMENT

The Appellant has been charged with the following offence:

Statement of Offence

PORNOGRAPHIC ACTIVITIES INVOLVING JUVENILES: Contrary to Section 62A (1) (b) of the Juveniles Act Cap 56.

Particulars of Offence

PHILIP THOMAS HEFFERMAN on the 5th day of October 2002 at Ovalau in the Central Division, in public, made video records of pornographic activities of juveniles namely Sakaraia Delai, Miliakere Cagimaiwasa, Amenatave Koroi, Adriu Cirikiwai, Kalivati Ratuaiavi, Samuela Sukere, Paula Lagilagi, Timoci Lolokula, Etuate Lavoa, Leone Lomalailai, Moape Vosanibola, Viliame Dali, Sivoni Ligaiviu and Sivaniolo Seru.

The charge was filed on the 19th of March 2003 and the case was called on the same day. The plea was deferred pending the disclosure of the video tape of the “activities” alleged. On the 23rd of April the defence said that all disclosure had been received and the Appellant pleaded guilty on the 25th of April. The facts were read.

They were that the Appellant visited Levuka on 5th October 2002. He met a van driver and told him that he wanted to go around Levuka and take pictures of children bathing. At Waiviavia Settlement they saw some children bathing and the Appellant approached one Titilia Ofa to ask if he could take photographs. She agreed. The Appellant then told the children to take their clothes off and dance. A woman by the name of Titilia Draunidalo stopped the Appellant from photographing them.

The Appellant then went to another village where he picked up seven children and drove them to the river where the children were told to swim, after taking their clothes off. They did so and the Appellant video recorded them, focussing on their genitals. The children were given sweets and dropped back in their village.

On the same day the Appellant took further video recordings at another village of three girls and two boys. He asked the boys to take off their clothes, hold their heads and spread their legs whilst touching the sand. He then took video recordings from different angles focussing on the genital areas.

Having heard these facts, counsel said that: “Accused agrees to the facts subject to some variance.” In mitigation he said:

“My client does admit taking the nude photos of the children. His action could constitute an offence under s.62(4)(b) of the Juveniles Act in that the photographs could be deemed to be indecent.”

Counsel asked for an absolute discharge and the return of the video camera and associated equipment.

On the 2nd of May the learned Chief Magistrate said that he would like to view the video tape “for the sake of fairness and justice to both accused and prosecution and to ascertain the degree of obscenity.” On the 7th of May counsel for the accused said that although the Court could look at evidence before sentencing, under section 306 of the Criminal Procedure Code, he objected to the court viewing the tapes because the court had already accepted the defence version of the facts and because the video tape was objected to on the ground that it was unlawfully obtained, hearsay and tampered with. The prosecution said that the video camera had been seized under a search-list and that it stood by the facts out-lined. Further, defence counsel had been aware of the existence of the tape and had been given an opportunity to view it.

The case was adjourned for ruling but the Appellant was sick and did not appear. However the Court announced that it would view the video tape at 2.15pm on the 6th of June. The defence filed a motion for a change of plea. The learned Chief Magistrate ruled on the application on the 19th of June, finding that there was no ground to allow a change of plea because the plea was unequivocal, there had been full disclosure, defence counsel and the accused had refused to look at the video recording and the accused had pleaded guilty after consulting his solicitor. The Appellant then appealed against the ruling.

The grounds of appeal are:

(a)	that the decision of the learned Magistrate was wrong in principle.

(b)	that the learned Magistrate took into account irrelevant considerations and disregarded relevant considerations.

(c)	that the learned Magistrate failed to grasp the legal principles on which the Appellant had made his application to set aside his guilty plea.

(d)	that the learned Magistrate failed to deal with issue of the Appellant’s constitutional right to challenge evidence that had been illegally obtained.

(e)	that the learned Magistrate failed to properly evaluate the issue of illegality or admissibility of the video evidence.

(f)	that the learned Magistrate failed to consider the issue why the prejudicial value of the video evidence far outweighed the probative value.

(g)	that the learned Magistrate failed to consider the principles enunciated by John Nicholson S.C in his article Defence of Alleged Paedophiles, Why do we need to bother?

(h)	that the learned Magistrate failed to inform the Appellant prior to the Appellant pleading guilty of the learned Magistrate’s intentions to view evidence that the Appellant had not consented to.

(i)	that the learned Magistrate erred in drawing an analogy between looking at a Post Mortem Report and the video evidence.

Of these grounds, counsel for the Appellant abandoned (b) and (c), that is, in relation to the vacating of the guilty plea. He was right to do so. The law on the subject of change of plea was clearly set out in S (an infant) –v- Recorder of Manchester and Others (1971) AC 481 by the House of Lords. I applied those principles in State -v- Timoci Kauyaca Bainivalu HAC0006 of 2002. A plea can be changed at any time before sentence. However in considering change of plea, the court should only allow the change if there was an equivocal plea, or the facts did not disclose the change or there was prejudice as a result of lack of legal representation. The discretion should be exercised sparingly and judicially.

In this case, the learned Chief Magistrate quite rightly found that there were no grounds to allow a change of plea. Indeed counsel conceded that he had no legal basis for a change of plea but had simply made the application when faced with the prospect of the court viewing disputed material. Further there is no dispute that the facts disclose the offence. The only question is as to the nature of the pornographic pictures which will then reflect on sentence.

This appeal is therefore confined to the learned Chief Magistrate’s order to view the video taped evidence. In his ruling, he found that disputing the tape was “simply a ploy to hide away from the truth which is well-known to both Accused and his counsel.” He found that disputing the tape was not a ground for change of plea.

Counsel for the Appellant concedes this. However he submits that he has a right to challenge disputed evidence even on a guilty plea, and says that he has a right to a “Newton” hearing.

State counsel submits that the grounds raised by counsel for challenging the evidence are spurious and that the learned Chief Magistrate quite rightly rejected them. He further submitted that the video camera and tape were all obtained lawfully under a search warrant, that there was no question of tampering with or altering the tapes because the Chief Magistrate would have been shown the original untouched recording on the camera itself and that this appeal should be dismissed.

Section 28(1) of the Constitution provides that:

“Every person charged with an offence has the right … (e) not to have unlawfully obtained evidence adduced against him or her unless the interests of justice require it to be admitted.”

Of course the first question is whether the Appellant is a person charged with an offence. Has his conviction absolved the court from a duty to ensure that all the rights in section 28 are respected? International jurisprudence shows that the rights given to charged persons are given to ensure that a person gets a fair hearing. In Drew –v- Attorney General [New Zealand Court of Appeal, 12th July 2001, NZLR (2001)] the New Zealand Court of Appeal considered whether a prisoner charged with the illegal use of heroin under the Penal Institutions Act had a right to counsel, although the hearing was conducted by a disciplinary tribunal and not by a court of law. The Court held that although the prisoner had no absolute right to legal representation, adjudicates in prison, should exercise their discretion to consider whether natural justice required such legal representation. Although the Court did not rule on the applicability of the Bill of Rights to prison hearings, it did consider Article 14 of the International Covenant on Civil and Political Rights to conclude that the exercise of a discretion to allow legal representation would accord with natural justice.

The purpose of section 28 and of section 29 is to ensure a fair hearing. Section 28 refers specifically to the sentencing process. There are some rights set out in the two sections which obviously do not apply to a convicted person. One is the presumption of innocence. Another example is the right to witness statements. However, if one is to interpret section 28(1)(e) purposively, then the right not to have unlawfully obtained evidence adduced, must apply also to a sentencing hearing. If, for instance, the court wishes to rely on the contents of a confession in order to pass sentence, and the defendant says that the confession was obtained by torture, then the prosecution must prove to the court that it was not so obtained, before the court can give any weight to it at all. Such an approach is consistent with fairness and justice.

The question of reliance on disputed evidence in the sentencing process was considered by the Fiji Court of Appeal in Rajend Kumar –v- State (Crim. App. No. HAA0005 of 1992). In that case the sentencing judge relied on confessional evidence to deliver the sentence. The defendant said on appeal that he disputed that evidence. The Court of Appeal referred the matter back to the High Court to hold a hearing into the admissibility of the confession before sentencing afresh. At page 2 of the judgment the Court said in relation to evidence on the depositions after a paper preliminary inquiry:

“It is apparent therefore, that a defendant has the opportunity to challenge any of the evidence contained in the written statements. If this has not been done then we consider the trial Judge is entitled upon a plea of guilty to take into account the contents of the written statements. We should add that if, following committal, the Judge indicates his intention to rely on any part of the written statements which the defendant then wishes to challenge then, notwithstanding the prior failure to raise the matter, we would expect the Judge to give an opportunity for counsel to be heard, and, if necessary, for evidence to be taken in order that the matter in dispute could be resolved.

Such a procedure has now been followed at our request by the trial Judge.”

In principle therefore a sentencing court can hear evidence before passing sentence, and if it wishes to rely on disputed evidence, must decide on the admissibility of it before relying on it to pass sentence. Should the Chief Magistrate have considered admissibility in this case?

The grounds for challenge are twofold: One that the camera was seized in an illegal search, and two that the contents of the tape to be viewed had been tampered with. In this case the prosecution says that the search was lawful and that he has a valid search warrant with the camera listed in it. If this is so, then simple disclosure of that warrant would dispose of that objection. If however there was no search warrant, and therefore no lawful search, then the court will need to consider section 26 of the Constitution which protects persons from unreasonable search and seizure of property and the decision of the New Zealand Court of Appeal in R –v- Maihi (22nd August 2002 Court of Appeal) in relation to the admissibility of evidence seized without a warrant. In that case the Court of Appeal held that the court had to consider whether the unlawful search was reasonable. If it was reasonable, it was admissible. If unreasonable, then in considering admissibility the court had to balance the need to have a credible system of justice with the individual’s right to privacy and protection from unlawful searches. However this test is only applicable where the search is held to be unreasonable. To reach any conclusion on the matter, the court will have to hear evidence about the circumstances of the search. Section 306 of the Criminal Procedure Code provides:

“The court may, before passing sentence, receive such evidence as it thinks fit, in order to inform itself as to the sentence proper to be passed.”

This provision conforms with the common law on the hearing of disputed facts on a sentence hearing. In R –v- Tolera (1999) 1 Cr. App. R. 29, Lord Bingham C.J said that where the defendant disputed some part of the prosecution facts it was for the defendant to clearly state the matters in dispute and the grounds for such dispute. If the prosecution did not accept the defence version and if the discrepancy was significant in that the level of sentence depended on which version the court accepted then the court could hold a “Newton” hearing to resolve the issue.

In R –v- Newton 77 Cr. App. R. 13, Lord Lane C.J said that where there was a dispute about the facts which would affect sentence, the judge could either accept the defence version, or hear the evidence and come to his own conclusion. Defence counsel does not need to agree to a Newton hearing (R –v- Smith (P.A.) 8 Cr. App. R(s) 169) and where such a hearing is held evidence must be led in the ordinary way by counsel. The court must direct himself/herself on the ordinary standard of proof before accepting any version of the facts. Any appeal from such a finding will only succeed in clear cases which would be rare where there have been findings of credibility, especially on the basis of the defendant’s evidence (R –v- Nabil Ahmed 6 Cr. App. R(s) 391).

A Newton hearing is unnecessary where the dispute is irrelevant to sentence, where the judge and prosecution accept the defence version, where the defence version is “manifestly false” or “wholly implausible” (R –v- Hawkins 7 Cr. App. R(s) 351) and where the defence put forward matters in mitigation which are outside the knowledge of the prosecution.

In this case, there is a wide variance between video recording nude children, and video recording the genitals by close focus of those nude children. Any finding reached by the learned Chief Magistrate would undoubtedly have an impact on sentence. In the circumstances his wish to view the recording is quite understandable. However, if the recording is challenged as unlawfully obtained evidence, then it must be properly tendered by a prosecution witness who can explain the circumstances of search and seizure.

The second ground of challenge raised is that the evidence has been tampered with. I fail to see how the defence can raise this ground when neither the Appellant nor his solicitor has viewed the recording intended for the Chief Magistrate. This submission is akin to an objection raised as to the fabrication of a police interview without reading the interview notes. The learned Chief Magistrate quite rightly rejected this ground of dispute. If however, the Appellant and counsel view the recording, and then inform the court that it has been tampered with, then section 28(1)(f) protects the Appellant’s right to dispute that evidence. If the prosecution insists on adducing such evidence for the purpose of sentence, then the prosecution must prove that it has not been tampered with and therefore not unlawfully obtained. At this stage however, these matters are speculative. Once the Appellant has viewed the recording and the search warrant, he may well withdraw his objections. For the purpose of this appeal, I merely find that there are no grounds for a change of plea, that the defence has a right under section 28(1)(e) of the Constitution to challenge disputed evidence on the ground that it was unlawfully obtained, in the course of a sentence hearing, that the challenge must be made after the defence has read/seen/viewed the evidence and is able to articulate precisely the nature of the objection, that where evidence has been obtained as a result of a lawful search, the magistrate should also consider whether it was reasonable, and that it is only after a finding of admissibility that a court may rely on disputed evidence for the purpose of sentence.

Result

The appeal against the order in respect of change of plea is dismissed. The appeal against the order to view the tape succeeds to the extent that the learned Chief Magistrate must now hear counsel on the lawfulness of the seizure of the camera and, if the defence has shown proper grounds for challenge to hear evidence on admissibility. This appeal succeeds to that extent. The case is remitted to the Chief Magistrate for a continuation of the hearing on that basis.

Nazhat Shameem
JUDGE

At Suva
12th December 2003