[1979] KILR 55

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 19 of 1979

TEBEN BWEBWE

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 2nd May 1979

Criminal appeal - appeal against conviction and sentence - appeal out of time - heard by virtue of section 282 of Cap 7 - plea of guilty in writing - Police informed Magistrates that appellant had pleaded guilty in writing - written plea not produced in evidence - procedure irregular - appeal allowed - conviction and sentence set aside - re-trial ordered.

The Police prosecutor in the Magistrates' Court at Betio on 15th February 1979 informed that Court that the appellant had written a letter to the effect that he wished to plead guilty. The Police Prosecutor, following the normal practice, when there were a lot of such pleas, did not produce the letter to the Court. The Court convicted the appellant of speeding contrary to regulation 7(3) of the Traffic Regulations and with driving without a driving licence contrary to section 16 of Cap 71. The appellant first learned of the fines when he was summoned to show cause why he had not paid them.

HELD: Allowing the appeal and setting aside the conviction and fines, Magistrates should not accept the word of the Police as to whether or not an accused pleads guilty but should have produced to them the accused's actual written letter and they should check whether or not sufficient time has been given to the accused to attend Court or to make his plea in writing.

O'BRIEN QUINN C.J.:-

This is an appeal which, although cut of time, I will entertain under the provisions of section 282 of Cap 7, in view of the point raised.

2. The appellant was charged with Speeding, contrary to section (sic) 7(3) of the Traffic Regulations made under Cap 71 and with driving without a Driving Licence contrary to section 16 of the Traffic Ordinance (Cap 71).

3. When the case was set down for hearing on 13th February 1979 the Police Prosecutor informed the Magistrates' Court, Betio, that the appellant had pleaded guilty in writing. The Magistrates accepted the word of the Police Prosecutor and convicted the appellant, fining him $15 on the first count and $5 on the second count and ordering him to pay the fines within four weeks or to go to prison for 6 weeks in default of payment.

4. The appellant was never notified of this until the Police came to arrest him for non-payment, only this week.

5. The appellant claims that he never pleaded guilty in writing and that the letter before the Magistrates' Court was not his.

6. I have examined the handwriting of the letter before the Magistrates' Court and have compared it with the handwriting in the appellant's letter of appeal. There is no doubt that the handwriting in one is not anywhere nearly the same as in the other. I also called the Presiding Magistrate who informed me that, in his view, many of the "pleas of guilty in writing" are merely mentioned by the Police and are not in the handwriting of the accused person.

7. This is a practice which, if it exists, must stop. In the present case it is very likely to be true that the "plea of guilty in writing" was put in by someone other than the appellant as the Charge Sheet is dated 13th February 1979, the "plea" is dated 13th February 1979 and the case was heard on 13th February 1979, which would lead one to suspect that the appellant could not have been summoned or, if he had been summoned, would not have been given sufficient opportunity to have pleaded as he is alleged to have done or to attend the Court if he had wished to do so.

8. I must, therefore, set aside the convictions and fines of $15 and $5 and order that the case be properly tried with the appellant being given a proper opportunity to decide whether to plead "guilty" or "not guilty" in writing or in person.

9. In future, Magistrates should not accept the word of the Police as to whether or not an accused pleads guilty; they should have produced to them the accused's actual written letter and they should check whether or not sufficient time has been given to the accused to attend Court or to make his plea in writing.

10. Pleas of guilty in writing are an exception to the rule that an accused must attend in person and plead, and if this privilege is being abused by accused persons or by the Police I will take steps to have the law changed to remove it as it is only allowed to assist accused persons and make justice run more smoothly in minor cases.