IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 64 of 2007

PUBLIC PROSECUTOR

-V-

WILSON RARUA
BARRY PAKOA
NEWQA KABEA
JAMES KELLY
BULE JOHN
MAXIME LEWAWA
PHILIP AVOCK
TERRY SAM
JIMMY JONAS

Coram:	 Justice C.N. TUOHY	

Date of Hearing: 15th April 2008
Date of Decision: 14th May 2008

Counsels: Mr. Standish for Public Prosecutor
Mr. Toa for Defendants

RULING

1.	On 15 April 2008, I refused the defendant’s applications to remove their convictions and to change their pleas to not guilty. I stated that I would provide written reasons for the refusal. They follow:

2.	The history of the prosecution of the defendants is important. The defendants and Tutuwo Song were initially arrested and charged on 9 September 2007. On 24 September 2007, the preliminary enquiry was conducted by the Magistrate and all defendants were committed to appear in the Supreme Court for plea on 2 October 2007. They were on that date remanded by the Chief Justice without plea to 11 October when they appeared before me. On that date a further remand without plea was sought until 2 November 2007.

3.	An information was file in the Supreme Court in October 2007 charging the defendants with the following 13 offences:

Wilson Rarua 	(Counts 1 and 2)
- (1)	aiding sexual intercourse without consent
- (2)	aiding indecent assault

John Bule(Counts 3 and 6)
- (1)	sexual intercourse without consent
- (2)	(anal) sexual intercourse without consent

Maxime Lewawa (Count 4)
- sexual intercourse without consent

Jimmy Jonas (Count 5 and 8)
- (1)	sexual intercourse without consent
- (2)	sexual intercourse without consent

Berry Pakoa (Count 7)
- sexual intercourse without consent

Newa Kabea (Count 9)
- sexual intercourse without consent

James Kelly (Count 10)
- indecent Assault

Philip Avock (Count 11)
- indecent assault

Terry Sam (Count 12)
- indecent assault

Tutowo Song (Count 13)
- aiding sexual intercourse without consent

4.	On 2 November 2007, all defendants were arraigned before me and all pleaded not guilty to every charge. They were all remanded until 4 February 2008 for a 2 week trial starting on that date. Some were remanded in custody, some were already on bail and some obtained bail later in November. All defendants were represented by Mr. Bartels of the Public Solicitor’s Office. He had represented them on all their appearances in the Supreme Court. Mr. Kevin Nathan of the Public Solicitor’s Office had represented them at the preliminary enquiry.

5.	On 4 February 2008 at 9 am, the Court convened. Mr. Bartels appeared initially but only to advise that the Public Solicitor himself, Mr. Toa, would be appearing on the matter. The Court stood the case down until later in the morning. The Court made a handwritten Minute to record what then occurred (the accuracy of which Mr. Tevi, who was appearing for the Public Prosecutor on the day, has confirmed). It reads:

“ Criminal Case 64 of 2007
PP v. Wilson Rarua & Ors.

Mr. Tevi for PP
Mr. Toa and Mr. Nathan for Deffs.
Mr. Tevi applies to withdraw some charges and amend others, after which the accused will be re-arraigned.

-	 All by consent
-	 Counts 2, 6, 8, 12 and 13 withdrawn
-	 Count 9 (the second against James Kelly), 10, and 11 renumbered as Counts 10, 11 and 12.
-	 Counts 3, 4, 5, 7 amended as shown on information.

Accused re-arraingned:

Count 1 	Wilson Rarua	G	
Count 3	John Bule 	G	
Count 4	Maxime Lewawa	G	
Count 5	Jimmy Jonas	G	
Count 7	Berry Pakoa	G	
Count 9	Newa Kabea	G	
Count 10	James Kelly	G	
Count 11	Philip Avock	G	
Count 12	Terry Sam	G	

- Court reads summary extracted from bail summary and asks counsel if fair. Mr. Toa accepts except for Rarua. Query whether he understands guilty plea involves admission he knew others would rape victim.

- Jimmy Jonas
- Maxime Lewawa
- Terry Sam
- Philip Avock
- John Bule
Are all in custody

Mr. Toa 
- Asks for further bail for those who are in custody now.

Court
-	 Plea of Guilty for Wilson Rarua is withdrawn. He is stood down for further discussion with Mr. Toa and will be re-arraigned at 2 pm. Prosecutor to keep available witnesses needed for a trial of Rarua.
-	 All other accused convicted and remanded in custody for a Probation Officer’s Report, Victim Impact Statement and sentence on 29 February, 2008 at 3 pm
-	 Bail refused: Defts convicted and all facing certain terms of imprisonment: No grounds for granting bail.
-	 In the afternoon Rarua re-arraigned and pleads Guilty again.
Ct RIC 29.02.08”

The amended information contained no charge against Tutowo Song and he was discharged.

6.	Following the entry of their guilty pleas on the charges in the amended information, the defendants were convicted and remanded in custody to 29 February 2008 at 3 pm for the preparation of pre-sentence reports and sentence. Sentencing did not take place that day and the defendants were further remanded to 7 March 2008. On that day Mr. Toa presented written submissions on sentence which he confirmed orally, stating in mitigation that the complainant had consented to sexual intercourse and other sexual activity with all the defendants. When the Court pointed out to him that the pleas of guilty involved an admission by the defendants that the complainant did not consent to the sexual intercourse and other sexual activity charged, Mr. Toa maintained that his instructions were that she did.

7.	The Court then aborted the sentencing hearing and remanded the defendants to 28 March 2008 for the hearing of an application to vacate the convictions and for leave to change plea. Directions were made that a written application with supporting sworn statements were to be filed and served by 14 March. That was not complied with. On 28 March after the Court had began sitting a document was filed entitled “Defence Submissions in support of Application of Defendants Wilson Rarua and 9 others to remove convictions on Rape, Indecent Assault and Aiding and Abetting Rape and for Change of Plea of Guilty to Not Guilty and in Response to any Prosecution Submissions on Defendant’s Application to vacate Pleas of Guilty”. No sworn statements were filed. The defendants had to be remanded again to 15 April.

8.	On 31 March 2008, the present application was filed. The grounds are set out below:

“ 1.	At that time the Defendants told their lawyer that they would enter a plea of guilty because they have had sexual intercourse with the girl who now says that they forced her.

2.	Their lawyer had fully explained the aspects of the element of the charge to them and they fully understood the situation that they are in but because they felt that they had already had sex with the girl and because it seems that they do not have the chance of being believed because the girl’s uncle is a police officer and facilitated this report they all believed that they do not have a chance of being found Not Guilty and so they Pleaded Guilty when they previous lawyers advised them.
3.	The Defendants still maintain that they have had sexual intercourse with the girl by consent.

 4.	Had it not been for the fact that the girl’s uncle is not a police officer this incident would have been forgotten because the Defendants themselves called the police to come and take the girl home after that time when after they have all had sex together.

5.	The Defendants say that they have told their lawyer during the interview before sentence that the girl agreed for them to have sex and he took down exactly what they have said and presented their instructions before this Honourable Court for mitigation, and during which time this Honourable Court rejected their guilty plea, and had asked their lawyer to explain why the Defendants have pleaded guilty in the first place, and why their convictions should be quashed and their guilty pleas vacated.

6.	That there will be a miscarriage of justice where the Defendants have changed their pleas to Not guilty and need to be convicted only after trial.

7.	The Defendants have expressed the wish to contest the truth of the girl’s testimony that the Defendant’s forced her to have sexual intercourse with her.

8.	Such Further or Other Grounds As the Defendants would depose to in their sworn statements or that which they may advance through Counsel”.

9.	Each of the Defendants has made a sworn statement in support of the application. All sworn statements are in exactly the same terms:

“ 1.	I am one of the Applicant Defendants in this Application. 
 2.	When the matter first came up for plea I was represented by Peter Bartels and Kevin Nathan of the Office of the Public Solicitor.
3.	At that time I told my lawyer that I would enter a plea of guilty because I had sexual intercourse with the girl who now says that I forced her.
4.	My lawyer fully explained the aspects of the element of the charge to me and I fully understood the situation that I am in but because I felt that I had already had sex with the girl and because it seems that I do not have the chance to being believed because the girl’s uncle is a police officer who facilitate this report I believed that I do not have a chance of being found Not Guilty and so I Pleaded Guilty when my previous lawyers advised me.
5.	I still maintain that I never forced the girl and that she consented, before we had sex together.
6.	Had it not been for the fact that the girl’s uncle is not a police officer this incident would have been forgotten because we ourselves called the police to come and take the girl home after that time when we had sex together.
7.	I told my lawyer during the interview before sentence that the girl agreed for us to have sex and he took down exactly what I said and presented my instructions before this Honourable Court for mitigation, and during which time this Hounourable Court rejected my guilty plea, and had asked my lawyer to explain why I had pleaded guilty in the first place, and why our convictions should be quashed and our guilty pleas vacated.
8.	I wish to say that what my lawyer has told the Court is the truth of what I told him to tell this Honourable Court.
9.	I now wish to have my matter tried, and for me to contest the girl’s testimony that I forced her to have sexual intercourse with her”.

No sworn statement was filed by either of the counsel who appeared for them prior to entry of their pleas, that is, Mr. Bartels (on the not guilty pleas) and Mr. Toa (on the guilty pleas).

10.	In a ruling I gave in PP v. O’Connor Criminal Case 51 of 2007 (28 March 2008), I held that the Supreme Court has inherent jurisdiction to entertain an application to vacate a conviction and change plea before sentence. As to the principles applicable to such an application, I held that they are as set out in the New Zealand Court of Appeal Case of R v. Ripia [1985] 1 NZLR 122 (adopted in Samoa: Nofoaiga v. Police [2007] WSCA 3) and in the New South Wales Court of Criminal Appeal decision in R v. Hura [2001] NSWCCA 61.

11.	The approach in Ripia is accurately set out in the headnote:

“An accused who has pleaded guilty on arraignment may withdraw his guilty plea at any time before sentence with permission granted at the discretion of the Judge.  The grounds on which a Judge may allow a change of plea before an accused has been sentenced are not so restricted as the grounds on which a change of plea will be allowed after an accused has been sentenced.  An application for a change of plea at the pre-sentence stage of proceedings should be decided on the broad principle of whether it is required in the interests of justice, because of a mistake or misunderstanding, or for some other reason.  In such a case no question of appeal against conviction arises.  Here the accused had pleaded guilty to a charge of rape after receiving proper advice from experienced counsel.  His application to change his plea had been made merely because he had changed his mind and because, on further advice, he thought he ought to have taken his chance with a jury.  That was not enough to support an application for a change of plea”.

12.	That approach was confirmed by the New Zealand Court of Appeal in Le Page v. Queen [2005] NZCA 67 where the Court said (at Para 16 – 19).

“[16]……..it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

[17] A miscarriage of justice will be indicated in at least three broad situations which are identified and discussed in Adams on Criminal Law, para CA385.21. The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element. It is not suggested the present case is in this category.

[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence…there may be scope for overlap between the categories to which we are referring.

[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law……. In such cases, which will admittedly be rare, this Court would intervene to cure a miscarriage of justice which plainly flowed from the erroneous ruling”.

13.	In Hura, Spigelman C.J. set out the principles distilled from the Australian authorities (at paras 32 and 33):

“32    The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in R v Toro-Martinez [2000] NSWCCA 216. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty: 

· Where the Appellant "did not appreciate the nature of the charge to which the plea was entered" (R v Ferrer-Esis (1991) 55 ACrimR 231 at 233. 

· Where the plea was not "a free and voluntary confession" (R v Chiron (1980) 1 NSWLR 218 at 220 D-E). 

· The "plea was not really attributable to a genuine consciousness of guilt" (R v Murphy) [1965] VR 187 at 191). 

· Where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt" (R v Sagiv (1986) 22 ACrimR 73 at 80). 

· Where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ...some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt" (R v Cincotta NSWCCA 1 November 1995 (unreported)). 

· The "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt" (Maxwell v The Queen (supra) at 511. 

· If "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt" (R v Davies NSWCCA 16 December 1993 (unreported)). See also R v Ganderton NSWCCA 17 September 1998 (unreported) and R v Favero [1999] NSWCCA 320). 

33    Particularly pertinent for the present case is a frequently cited passage in the judgment of Badgery-Parker J in R v Davies (supra) where his Honour said: 

"If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial." 

14.	Although differently expressed, it is unlikely that either approach would result in any different result in a particular case. On the basis of the principles set out in those cases, I turn to consider this case.

15.	The first point is that it is quite clear that all the accused understood exactly what they were charged with and what they pleaded guilty to. In particular each knew that the offence charged involved an allegation that the complainant did not consent to the sexual activity. The charges in the information are in Bislama and were read individually to each defendant who was asked to plead. The charges under s. 91 against Bule, Lewawa, Jonas, Pakoa and Kabea were (with immaterial variations) contained the following words:

"Samtaem long namba 9th September 2007 long Kawenu Cove yu bin havem sexual intercourse wetem woman ia (the complainant) olsem yu havem sexual intercourse wetem hem we hemi no consent long hem".

The charges against Kelly, Avock and Sam respectively were (again with immaterial variations):

"Samtaem long namba 9th September 2007 long Kawenu Cove yu bin rubbem penis blong yu long vagina blong woman ia (the complainant) mekem se hemi no glad long fasin wei yu mekem long hem".

None of them could have been in any doubt about what the charges meant or what their answer "Tru" meant in response to the question "I tru or no tru?".

16.	The only charge which had any legal complexity was that against Rarua. It will be seen from the history set out above that the Court was not initially completely satisfied that he fully understood what the charge and his plea involved, and for that reason stood the matter down to the afternoon so that he could further discuss it with his counsel before plea was taken. Having done that, he confirmed it.

17.	In any event there is no suggestion that they did not make an informed decision to plead guilty. They were represented by the Public Solicitor himself. They must have previously received advice as to plea from Mr. Bartels. They negotiated significant reductions and amendments in the charges based on their guilty pleas. They acknowledge in their sworn statements in effect that they made an informed decision to plead guilty.

18.	The sole reason they give for now wanting to change plea is without any substance. They say they pleaded guilty because they did not think they would be believed. Now presumably, (because they do not say it), they think they might be believed. In fact nothing has changed.

19.	Other than their bald assertions, they provide no material to even suggest that there is any substance in the claim of consent they are now making. They all admit (still) either having intercourse or trying to, one after the other with this 17 year old girl. So, they now say, she was willing to be penetrated by several young men one after other while all were watching the others having their turn when she did not even have a relationship with any of them. That proposition needs only to be stated to demonstrate how completely improbable it is.

20.	They do not even attempt to explain the evidence presented at the preliminary enquiry of:

(a)	 the bruising to her neck which the doctor said was consistent with the history of digital pressure to the throat
(b)	 the multiple fine skin tears to her vagina and vulva which the doctor said were consistent with multiple episodes of forced vaginal penetration
(c)	 why the complainant would want to continue with intercourse with a succession of men when those injuries must have been causing her pain
(d)	 why they all made written statements admitting that they had either raped the complainant, tried to rape her or touched her private parts in pursuance of a plan made with Rarua to do just that; or in Rarua’s case admitted making the plan and luring the complainant to the place where it was carried out
(e)	 why they all (except Avock) made detailed admissions after conviction to the authors of the pre-sentence reports once more admitting the offences 
(f)	 why the complainant would say they raped and assaulted her if it was all with her consent.

21.	I am entirely satisfied that there is no possibility of any miscarriage of justice in the convictions of any of these defendants. None of the circumstances which according to the authorities might justify setting aside the convictions exist here. They understood exactly what they were doing when they pleaded guilty faced with overwhelming evidence of their guilt. Some of them obtained significant reductions in the charges facing them when they did so (and all received significant reductions in the sentences imposed on them because of their pleas). There is nothing in anything put before the Court which raises even a suggestion that there has been any miscarriage of justice.

Dated at Port Vila, this 14th day of May, 2008

BY THE COURT

C.N. TUOHY
Judge