IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 162/10

STATE

V.

VinOd Chandra

Prosecution : PC Pauliasi, Police Prosecutor.
Accused : Not present (excused) Represented by Ms Radhika Naidu (Sherani & Co.)

Ruling
Introduction

The Defence had filed a notice of motion with an affidavit in support seeking that the guilty plea be set aside. 

The accused on 9th January 2012 pleaded guilty and admitted the facts that were put to him. Upon him entering his plea and admitting the facts the Court convicted him as charged. The accused’s mitigation was noted and the accused was granted bail with appropriate sureties for sentencing on 9th February 2012.

On 9th February 2012, the Counsel appeared for the accused and informed the Court that she was retained a week ago and that the accused wanted to reconsider his plea. The Court noted that the Sentence was ready for delivery and sought that the Counsel makes a formal application.

Application

The Defence had filed an application seeking to vacate the plea and stated that it relied on the inherent powers of the Court. The Defence stated that there were no specific legal provisions relating to their application. The prosecution was given time to respond to the Motion. No response has been filed. The Defence made written submission which this Court has considered. 

The Law

The Court agrees with the Defence that there is no specific legal provision with respect to the application. The Defence in its application stated that it relied on the inherent powers of this Court. This is incorrect as the Magistrate’s Court does not have inherent powers. It is a Court of summary jurisdiction and not a Court of Record. 

This Court has noted a number of cases where similar issues were canvassed and the Court’s have dealt with them accordingly. The cases are:

Local Cases:

State v Prasad [1994] FJHC 111; Haa0039d.93s (6 September 1994) (per Justice Pain)
State v Vetiduadua [1995] FJHC 90; HAJ0001d.1995s (12 May 1995) (per Justice Pain)
Delai v State [1995] FJHC 195; [1995] 41 FLR 168 (28 July 1995) (per Justice Pain)

English Cases:

S. (An infant) By Parsons (His next friend) v. Recorder of Manchester and others  [1971] AC 481.  
Reg v. Essex Justices, Ex parte Final [1963] 2 QB 816. 
Rex v. Manchester Justices; Ex parte Lever [1937] 2 KB 96.

Analysis

From the Court record this Court notes that the accused pleaded guilty after informing the Court that he wished to change his plea. The Court had asked the accused “have you given a considerable thought on your move?”. The accused had responded “yes, sir”. When the facts were read over and put to the accused he understood and admitted the facts. The accused was convicted of the charge accordingly. Later for the accused in his affidavit to depose that “one of the Indian Clerk translated to me that the Magistrate wants to send me to jail. I did not have any legal representation and I was not sure what to do. So I just said that I am guilty” seems quiet mischievous. The Court states this as the Presiding Magistrate had afforded the accused the opportunity to consider his decision well after he wanted to change his plea.

The Court further notes that the accused was given ample time from the 1st call of the case to get legal representation and he applied for legal aid, which was rejected. The accused then informed the Court “I am pleading not guilty, I am representing myself. No need for a lawyer.” The Court further notes that the accused has been on bench warrant a number of times and each time the warrant was cancelled and on one occasion the accused told the Court that he has a “problem of forgetting things”. The Court having noted the affidavit and the Court records sees that the Court has performed its task diligently and the accused person has not been to Court on time and with numerous excuses and for that reason has lots of doubts on the deposition and the truth of it in his affidavit in support. 

The Court felt that it was important that this Court highlighted its concern on the allegation by the accused that the Magistrate wanted to send him to jail when from the Court records it is clear the Magistrate gave the accused ample time and opportunity, even to reconsider his plea.

The Court has noted that the accused has been convicted of the charge and presented his mitigation in Court. On the date of sentencing the Defence had sought to have the plea which according to this Court was unequivocal be set aside. Even the sentence of the accused was ready for delivery. The defence is seeking that the plea be vacated. The issue for determination by this Court is whether the Court can allow that the accused’s plea be vacated or whether the magistrate is functus officio, which is after the Court has stated that the accused was convicted as charged, the previous offending has been tendered, and mitigation given by the accused.

The position in Fiji on the issues in this case is guided by case laws. In State v Prasad [1994] FJHC 111; Haa0039d.93s (6 September 1994),Justice Pain stated “A Magistrate is functus officio when he has discharged all his judicial functions in a case. A final adjudication brings an end to the case. In criminal proceedings he cannot re-open a case after the defendant has been convicted and sentenced. Any alteration to that sentence can only be done by an appellate court on appeal or review.”

In Delai v State [1995] FJHC 195; [1995] 41 FLR 168 (28 July 1995), Justice Pain stated that “...a Magistrates' Court, following a plea of guilty and before imposing sentence, could permit a defendant to change the plea to Not Guilty. In those circumstances the Magistrate was not functus officio when the defendant was "convicted" on his plea of guilty. The Magistrate would only be functus officio when the case had been finally determined by the imposition of sentence....”

The decision by Justice Pain in Delai (supra) was based on his Lordships reliance on S. (An infant) By Parsons (His next friend) v. Recorder of Manchester and others  [1971] AC 481, a decision of the House of Lords where all the Lord Justices had agreed that a court of summary jurisdiction which had accepted a plea of guilty to the offence charged was not in law debarred from permitting (at any time before passing sentence) a plea of not guilty to be substituted.  

Having noted the decisions of the High Court in Delai and Singh (Supra) and the Recorder of Manchester Case this Court rules that it is not functus officio as the matter has not reached final adjudication as the sentence of the accused was pending. It has to be noted that the desire of this Court and for that matter any Court is that only the guilty are punished. Having heard the application and however having had concerns on the reasons advanced by the accused as to why he pleaded guilty, the Court in the interest of justice and that the accused has now obtained legal representation, with appropriate legal advice the Court will vacate the accused's guilty plea. 

Chaitanya Lakshman
Resident Magistrate
18th October 2012