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State v Navugona [2014] FJMC 169; Criminal Case 342.2012 (22 December 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: 342/2012

STATE

V

MATAIASI NAVUGONA

Counsel: Mr. Fotofili for the State
: The accused in person

Date of Ruling : 22nd December 2014

RULING

1. The accused pleaded guilty for one count of Aggravated Robbery contrary to section 311(b) of the Crimes Decree on 22/08/2014 and also admitted the summary of facts on 27/10/2014. The legal aid represented the accused at these stages and also filed the mitigation on behalf of the accused. When this was fixed for sentence on 19/12/2014 the accused informed this Court that he wanted to vacate his guilty plea. The reason was that he was forced by the legal aid counsel to admit this offence. Therefore the legal aid made an application to withdraw from the accused and I granted that. Also since the State was not properly present I adjourned this case to today so I can hear the State's position also.
   
2. Again this morning the accused made a similar application with the same allegation that he was forced by his counsel from the Legal Aid. The learned counsel while admitting that the discretion is with the Court regarding the guilty pleas informed that based on the facts in this case they are objecting to this application.
   
3. In Blackstone's Criminal Practice 2011 in page 1610 it is said that:
   

"The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed. This was confirmed in Plummer [1902] UKLawRpKQB 105; [1902] 2 KB 339, where the major question for the court was whether P's conviction on a guilty plea in relation to a conspiracy charge could be sustained in view of the acquittal of his five alleged co-conspirators. P was not sentence until after the acquittal of the others, and, prior to sentence, asked to withdraw his plea. Wright J said (p. 347):

Another point is raised in this case, namely, whether the court had power to allow the appellant to withdraw his plea of guilty. There cannot be any doubt that the court had such power at any time before, though not after, judgment [ie. sentence] and, as we infer that but for the erroneous opinion that there was no such power the withdrawal would have been allowed, this might of itself be a ground for a venire de novo."

4. In House of Lords in S v Recorder of Manchester [1971] AC 481, it held that, in the context of change of plea, there is no conviction until sentence has been passed, and therefore magistrates (like the Crown Court) can allow a change to not guilty provided they have not yet passed sentence.
   
5. Therefore I find that this Court has the discretion to allow the accused to withdraw his guilty plea until his sentence is passed. But this discretion needs to be exercised judiciously after considering all the relevant factors. Also the Court would be reluctant to grant such an application when an accused is represented in a case as noted in Drew [1985] 1 WLR 914, where Lord Lane CJ said (at p. 923C):
   

'......only rarely would it be appropriate for the trial judge to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where, as here, the accused has throughout been advised by experienced counsel'.

6. In this case only reason given by the accused is that he was forced by his counsel to plead guilty.
   
7. From the case record I find that the accused appeared first time in this Court on 08/03/2012 and retained legal aid. After numerous adjournments he appeared again 22/08/2014 and pleaded guilty for charge. He admitted the summary of facts on 27/10/2014 and also admitted his past convictions. After that this was called two times before me but he never informed this Court about this allegation until I was ready to pronounce his sentence.
   
8. Also the accused is not a novice to the Court. He has some pending criminal matters for similar offences and in fact I have already given him a custodial sentence for a similar offence on 29/10/2014. In that case (CF 345/2012) also the same legal aid counsel represented the accused and up to now he has not made any allegation in that case. Therefore I find that reason given by him is not probable and can't be accepted by this Court.
   
9. After considering all the facts in this case I do not think I can grant the request by the accused to vacate his guilty plea. Therefore I dismiss his application.
   

H.S.P.Somaratne
Resident Magistrate