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State v Ravuaceva [2010] FJMC 155; Criminal Case 1201.2008 (1 July 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1201 of 2008

DPP

V

SEMI RAVUACEVA

For Prosecution: Ms. Hamza-Ali S. (Office of DPP)
Accused: Mr. Sharma (Legal Aid)

RULING

1. Accused in this case was initially charged for "Attempted Rape" contrary to Sec. 151 of the Penal Code. Later prosecution had amended the charge for "Rape" on 14th October 2008 and accused plead not guilty to the charge.
   
2. When this case was called on 30th November 2009, prosecution had again amended the charge to "Attempted Rape" with an alternative count of "Indecent assault". When the amended charge of "Attempted Rape" was explained accused had pleaded not guilty to the charge.
   
3. When this matter was called before me on 23rd March 2010 for hearing, counsel appeared for the prosecution informed the Court that the former magistrate had failed to explain the alternative charge to the accused and requested the Court to do the same.
   
4. Alternative charge then explained to the accused in Fijian language and accused informed that he is willing to plead guilty to the charge. Counsel for the prosecution sought time to prepare summary of facts and accused informed that he is not objecting for the request. However, accused remain unrepresented.
   
5. Upon the guilty plea of the accused all the prosecution witnesses were released by the Court.
   
6. On 06th April 2010, summary of facts filed and explained to the accused in Fijian language. After accused person admitted the facts Court convicted the accused as charged in the alternative count. Accused informed the Court that he needs time to tender his mitigation through the legal aid Counsel who was not present in Court.
   
7. At the same time legal aid counsel made his appearance in Court and sought time for mitigation submission.
   
8. When the matter was called on 19th April 2010, another counsel appeared on behalf of the accused from the legal aid office and informed the Court that the counsel who is assigned to the accused is not present and sought another date for mitigation.
   
9. On 12th May 2010, counsel for the accused informed the Court that his client is willing to vacate the guilty plea and moved time to file submission.
   
10. According to the written submissions of the Counsel for the accused, the guilty plea had entered by the accused depending on a promise given by one of the police officer (named in the written submissions) and thereby the accused has been misrepresented. Counsel further advised the Court that that the plea is hence unequivocal on the basis that accused did not fully understand the charge or the facts or the evidence before the Court.
    
11. In support of his submissions, Counsel for the accused referred several decided cases but this Court had not been provided with copies of the decisions. However, following decision had been referred by the Counsel.
    
    1. S (An Infant) v. Recorder of Manchester [1971] AC 481, by MacDermott LJ, where it has been held that a Court of summary Jurisdiction had powers to allow a change of plea at any time before sentence.
       
    2. R v. Isle worth Crown Court and Uxbridge Magistrayes Court, ex p Buda [200] 1 Cr. App. R (s) 538 – A change of plea from guilty to not guilty may be entertained at any time before sentence is passed.
       
    3. Bogiwalu v. State [FCA 1998] – Court of Appeal- Whether a plea of guilty is effective and binding will be a question of fact to be determined by the appellate court ascertaining from the record and from any other evidence tendered, what occurred at the time the plea was entered. The onus will be on the appellant to establish the facts on which the validity of the plea is challenged".
       
    4. Taunolo v. State [1993 FJHC] – High Court quashed the conviction of Magistrate on the ground that the accused person's plea is equivocal as he was wrongly advised by a Police Officer.
       
    5. Drew v. R [1985] 81 Cr. App. R 190 – following principles were approved.
       
       1. First, Court may allow a change of plea at any time before sentence.
          
       2. Second, that the discretion exists even where the plea of guilty was unequivocal.
          
       3. Third, that the discretion must be exercised judicially.
          
       4. Fourth, that a failure to exercise that discretion amounts to a material irregularity.
          
12. Counsel for the prosecution vehemently objected to the submission made by the Counsel for the accused and support her position referring to the following decided cases with copies.
    
    1. Gregory Alfred Ralph Middap Court of Criminal Appeal (Vic) – [(1989) 43 A Crim R] – Application to change a plea from guilty to not guilty is not governed by any presumption. There is a test to be applied to determine whether a miscarriage of justice would occur if the learned judge denied the application to allow a change of plea from guilty to not guilty.
       

The test is to be applied after examining each case on its own particular facts and merits and this must be exercised judicially.

2. Singh v. State [2000] FJHC 115 on 26th October 2000 – Appeal is dismissed on the ground that the plea is unequivocal and presiding judge had outline a format for the guidance before the plea is taken.
   
3. Heffernan v. State [2003] FJHC 163 (12th December 2003) – "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 charge [sic] or there was prejudice as a result of lack of legal representation. The discretion should be exercised judicially".
   
13. Issue is to be determined by this Court is whether the plea entered by the accused is equivocal and accused had been misrepresented when entering the guilty plea.
    
14. When this case is called for hearing on for the second time on 23rd March 2010, accused person was unrepresented. That was due to the fact that the Legal Aid rejecting his application. However, before this case been fixed for the hearing for the second time, accused had advised the Court that he is waiving his right to counsel.
    
15. On 23rd March 2010 accused plead guilty without an assistance of a counsel. When the case is adjourned for summary of facts, accused had been represented by a counsel from the legal aid office and moved another adjournment for mitigation.
    
16. On the next adjournment accused was again represented by a legal aid counsel and moved a further adjournment for mitigation as the counsel assigned for the accused was not available.
    
17. It is to be noted that in none of these instances, the counsels appeared on behalf of the accused sought to contest the guilty plea entered by the accused on his own volition.
    
18. The other fact to be noted is that, when the summary of facts placed before the Court, accused had a counsel to represent him from the legal aid office. However, that particular counsel was not present whilst the facts were reading in the Court by the prosecutor.
    
19. It is my understanding that the counsel appeared on that they with the clear understanding that the accused had already plead guilty to the charge and it is his duty to make submission in mitigation. Therefore, if the accused had been misled to plead guilty depending on a promise given by a police officer, counsel should have brought that matter to the notice of the Court.
    
20. If this Court is to assume that the counsel genuinely forgot to make that application on that day, this Court is at a loss to understand as to why the Counsel failed to mention that fact during the next adjournment.
    
21. Accused person never pleaded guilty to the main charge and alternative charge has never been put to the accused until the 23rd of March 2010. Until such time the counsel for the DPP brought it to the notice of Court about the existence of alternative charge accused had not been notified about such charge by the Court. Therefore, when the alternative charge was explained to the accused in his preferred language, accused did not have any time to consult any person who could have advised him about the plea.
    
22. As soon as the alternative charge, which was not known to the accused until it has been read and explained in open court, accused indicated his willingness to plead guilty to that charge. Therefore, accused person's counsel's submission which indicates that the accused offered to plead guilty depending on a promise made by one of the police officer could not have been true.
    
23. Considering the above findings, I decide that the accused person's plea is unequivocal and he has not been in anyway mistaken when entering the guilty plea. Therefore, the application for change of plea is rejected and conviction entered to be stand.
    
24. Counsel for the accused is invited to make mitigation submission.
    

On this Thursday the 01st day of July 2010

Kaweendra Nanayakkara
Resident Magistrate