ALFRED JOHN H. V THE STATE: A COMMENT[*]
RACHEL SUBUSOLA
OLUTIMAYIN[**]
The appellant in this case (who was unrepresented) moved the Fiji Court of Appeal to determine a very simple, important and uncommon issue. What is the proper procedure for a court to follow where an accused that appears on a multi-count indictment elects to plead guilty on some counts in the Magistrates’ Court and elects trial on other counts in the High Court? The Appeal Court held that in such cases sentencing for the counts to which he has pleaded guilty should be postponed until after he has been tried on his not guilty counts.
FACTS
The Appellant is the father of two girls E and L. E was born on 25 October 1983, and L on 20 August 1987. In October 2002 a report was lodged with the Police that the Appellant had regularly and frequently raped E with force between 1997 when she was 14 and 2002 when she was 19. It was also reported that he indecently assaulted L twice between January 2001 when she was 14, and October 2002 when she was 15. He appeared in the Lautoka Magistrates’ Court on 18 November 2002.
PROCEDURAL HISTORY
Magistrates’ Court
On 18 November 2002 the Appellant was charged in the Lautoka
Magistrates’ Court with ten counts of rape, attempted rape and indecent
assault. On 19 November 2002 he pleaded guilty to one count of rape against E in
November 2002, and two counts of indecent assaults against L between January
2001 and October 2002. He pleaded not guilty to the other seven counts. The
magistrate accepted his plea and severed the three accepted counts from the
seven unaccepted counts. He retained the accepted counts in file number 86/06,
and created a new file for the seven unaccepted counts. The accused pleaded
guilty to the three accepted counts in the Magistrates Court and elected a High
Court trial for the unaccepted counts. He accepted the Prosecutions’
summary of facts on the three counts. After mitigating on his own behalf, he was
sentenced concurrently to two years imprisonment on each of the indecent assault
charges, and three years imprisonment for the rape charge. A total of three
years imprisonment was imposed on him.
High Court
In April 2003, the appellant was committed to the High Court for trial on
the remaining seven counts. His case was not called for hearing in the High
Court until 2 November 2004. The information was filed on 6 December 2004.
Finally on 1 February 2005 he appeared in the High Court for trial. He was
unrepresented. Although all eight Prosecution witnesses were present, the Judge
adjourned the matter till the next day for him to get his counsel. On 2 February
2005, the matter was further stood down till 10:00am for him to arrange counsel.
When the hearing resumed at 10.00am he told the court he wanted to proceed on
his own and to change his plea. He also told the court that he did that on his
own free will and there was no pressure on him to do so. The information in the
seven counts was read to him, which he said he understood and pleaded guilty to
all counts with knowledge of the seriousness of the charges. A summary of
Prosecution facts was read to him. He accepted the facts. The Prosecution did
not disclose that he had been dealt with for three offences, which were part of
the same series of offences but disclosed the previous convictions for those
offences. The Judge sentenced him to ten, nine and three year’s concurrent
sentences for the seven counts, making allowance for the guilty plea, and taking
into account the circumstances and manner in which the offences were
committed.
Court of Appeal
Being dissatisfied with the sentence, he appealed to the Court of Appeal.
Legal Issues
The appellant raised the following issues:
1) That his plea was
equivocal because the court pressured him.
2) That the High Court breached
his right to a fair trial when he was refused sufficient time to engage another
counsel because his counsel withdrew.
3) That insufficient consideration was
given to the fact that he had already served a period of imprisonment for the
same series of offences.
4) That the sentence was manifestly
excessive.
LEGAL PRINCIPLES
Ratio Decidendi
When a solicitor knows that there are other charges against an accused,
to be dealt with other than those before the court, the solicitor should ensure
that an application is made to have the accused put back to be dealt with where
the other outstanding charges lie. If an accused enters mixed pleas on a multi
count indictment, or elects trials in different courts, sentencing on the counts
to which he has pleaded guilty should be postponed until after he has been dealt
with on his not guilty counts. If there are serious aggravating factors in a
sexual assault case the sentence imposed on the offender should reflect the
seriousness of the offending. If an accused has previously been dealt with for
some offences, which were part of the same series of offences, the sentencer
should take this into consideration and adjust the sentence imposed to show that
the offender has been previously dealt with.
Failure to follow the correct
sentencing procedure will benefit an appellant by entitling him/her to reduction
or cancellation of the improper sentence imposed.
A Judge should make allowance for a guilty plea and take into account the
circumstances and manner in which an offence was committed (R v Davies
[1995] Crim L.R 251, Hugman and others v R [1997] Crim.L.R.66,
348).
OUTCOME
In the High Court the accused was convicted on all
seven courts on his own guilty plea, and sentenced to ten, nine and three years
concurrent sentences.
On appeal, the appeal against conviction was dismissed
while the appeal against sentence was allowed. The sentence of 10 years
imprisonment was set aside while a sentence of 7 years imprisonment with effect
from 4 February 2005 was substituted. Suppression of names order extended
indefinitely.
COMMENTARY
Severance of Charges
The
Magistrate severed the three accepted charges from the seven unaccepted charges
and created a new file for the seven contested charges. The Court of Appeal said
this was an entirely wrong procedure. There is an obligation on counsel and
judges to do everything possible to ensure that all outstanding charges against
a defendant are dealt with in the same court by the same judge on a single
occasion (Bennett (1980) 2 Cr. App R (s) 96). In Bennett the
judges of Appeal made it plain that when a solicitor and a member of the Bar
knows there are other charges in other courts against the accused to be dealt
with other than those before the court, they should ensure that an application
is made to have the accused dealt with on all the charges in one court. It is
not clear why the State Prosecutor did not do so in this case. It seems the
presiding Magistrate was unaware of this procedure when he severed the charges.
A likely explanation for this blunder may be the lack of provision in the
Criminal Procedure Code[1] and
Penal Code[2]. The Criminal
Procedure Code provides for joinder of counts in a charge or
information[3], and for severance of
charges in a charge or information ‘if an accused person may be
embarrassed in his defense by reason of being charged with more than one offence
in the same charge or information, or for any other
reason’.[4] It is silent on how
the court should proceed where charges are severed as a result of electing
trials in different courts. This case reminds counsel, magistrates and judges of
the need to be well versed with procedural matters and ensuring compliance with
procedures.
The Accused elected to plead guilty in the Magistrates’ Court and
elected to contest the other counts in the High Court. An accused is given the
right to elect where to be tried in
rape[5] and some other offences in
Fiji[6]. The applicable principle is
that if an accused enters mixed pleas on a multi-count indictment, and the
prosecution does not accept the pleas; sentencing for the guilty pleas should be
postponed until after he has been tried on his guilty counts. This procedure was
not followed by the Magistrate, who sentenced him on the three counts before the
determination of the counts in the High Court. Again the possible explanation
may be that the Magistrate and prosecutor were unaware of this procedure because
it is not often that an accused elects trial in the High court on a rape charge.
Invariably they elect trial in the magistrates’ court where the sentencing
jurisdiction is much lower. Furthermore this situation is not is not
specifically provided for in the Penal Code and Criminal Procedure Code. The
Court of Appeal said that the fact that the accused elected trials in both the
Magistrates Court and High Court does not affect the operation of the principle
set out in Blackstone’s Criminal Practice
text[7] As a result of this procedural
error the appeal against sentence was allowed.
The Magistrate sentenced the accused to a total of three years
imprisonment on the three counts of rape and indecent assault. The Fiji Court of
Appeal observed that this sentence is too lenient given that the victims were
the appellants’ own daughters. The Court said that they are surprised to
say the least that the Director of Public Prosecutions decided not to appeal
against ‘the plainly, lenient sentence imposed by the Magistrates’
Court’. It is not surprising that the Court expressed this view. The
normal tariff for this type of offending is between four and five
years.[8] The Director of Public
Prosecutions should have appealed the leniency of that sentence given the
prevalence of this type of offending in Fiji. The Court was satisfied with the
sentence of ten, nine and three years imprisonment imposed on the appellant by
the High Court and described it as ‘entirely appropriate’. In
Mohammed Kasim v The
State[9] the Fiji Court of
Appeal laid down seven years as the starting point in rape cases. The judge
followed this guideline; he made allowances for the appellant’s guilty
plea, and took into account the nature and circumstances of this offending.
However the Court of Appeal set aside the sentence because of the unsatisfactory
way in which two sets of sentences were imposed. The summary of facts provided
to the judge in the High Court by the Prosecution made no mention at all of the
fact that the Appellant had previously been dealt with for three offences which
were part of the same series of offences to which he had just pleaded guilty.
They placed the fact of the three previous convictions before the judge who
treated the three offences as separate from those before him and regarded them
as aggravative of the seven charges before him. The Court of Appeal could not
overlook this procedural error by the Prosecution.
The Appellant was committed for trial in the remaining seven counts in
the High Court in April 2003. His case was not called in the High Court until 2
November 2004, and the information was not filed until 6 December 2004. This
was over two years after his case was disposed of in the Magistrates Court. By
the time the appellant came to the High Court he had been released from prison.
The court of appeal described the delay in filing the information as
‘disgraceful’. That is indeed too long a time to have a charge
hanging over a person’s head. It is not unusual to have such lengthy
delays between the defendant being committed to the High Court, call over, and
filing of Information in Fiji and other jurisdictions. The problem of delay
amongst other reasons led Parliament to amend section
220[10] on 1 November 2003. The
amendment abolished committal proceedings and replaced them with transfer
proceedings, which is a less complicated, and a faster method of transferring
cases from the Magistrates’ Court to the High Court. The appellant was
committed in April before the amendment to section 220, since the amendment was
not retrospective the appellant’s case had to await it’s turn on the
long list of cases awaiting trial in the High Court. The new section 220 fast
tracks transfer of cases from the Magistrates’ Court to the High Court and
ultimately a shorter waiting period for those awaiting high court trials.
In this case by the time this case reached the Court of Appeal, a case
file and other documents had been misplaced. As a result of this misplacement,
the precise sequence of events, which are of particular importance in this case,
could not be stated definitely by the Court of Appeal. Fortunately those
important facts were not needed by the appeal court to determine any of the
issues in this case. For this reason it is good and reasonable practice for
parties to have back up of all documents used in trials since court files
sometimes go missing before the final determination of the
matter.[11]
Suppression of Names Order
In this case a suppression of names order under the Juveniles
Act[12] was used to protect the
identity of the young complainants. It is important for the Prosecution to
continue utilizing this provision to protect the identity of juveniles who now
appear more than ever before in the criminal courts in Fiji particularly in
sexual assault cases. The Director of Public Prosecutions’
policy[13] requires all prosecutors
to seek the order in all cases affecting children. This puts Fiji on the same
plain with some neighbouring jurisdictions.
This decision is a timely remainder to lawyers, magistrates and judges on the procedure to adapt where an accused appears on a multi-count indictment and elects to have some charges disposed in the Magistrates’ Court and others in the High Court. The situation is not common but it happens now and again.
[*] Unreported Criminal Appeal No. AA U 0019/2005, Court of Appeal, Fiji Islands.
[**] Senior Lecturer in
Professional Legal Practice Programme, School of Law, University of the South
Pacific, Laucala Campus, Suva.
[1]
[Cap 21] (Fiji).
[2] [Cap 17]
(Fiji).
[3] Section 120 Criminal
Procedure Code [Cap 21]
(Fiji).
[4] Section 120 (3) above n
1.
[5] S 3 Electable Offences
Decree 1990 (Fiji).
[6] Ibid.
Schedule 1.
[7] Diane Birch et al,
Criminal Practice (1993), D9.20
[8] (Waisake Navunigasau v The State (Unreported, Court of App Fiji, Crim App No AAU 19/96, 23 September 1997, Eri Mateni v The State (Unreported Court of App Fiji, Crim App. No AAU0021/98S, 14 April 1998, Sikeli Koroi v The State (Unreported High Court Fiji, Crim App No HAA0048, 5 June 2002, The State v Ledua [2004] FJHC123; 28 June 2004 and The State v Viliame Tamani (Unreported, High Court Fiji, Crim Case No 007/2003, 19 September 2003).
[9] Unreported, Court of Appeal
Fiji, Crim. App No HAA 21/93, 19 November
1994.
[10] Above n 1.
[11] See DPP v Rakesh Chand, (Unreported Suva Magistrates Court, Crim Case No 208/1998, 19 September 1998.
[12] Cap 56 (Fiji) Section
12.
[13] Prosecution Policy of
Fiji (2003) 9.