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Police v Ekalesia [2003] WSSC 13 (13 August 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE

Informant

AND

REOPOAMO EKALESIA,

male of Leuia’i Manono Uta and Vailoa Palauli Savaii.

Accused

Counsel: M Hunter-Betham for prosecution/informant
TRS Toailoa for accused

Hearing: 31 July 2003
Judgment: 13 August 2003

JUDGMENT OF SAPOLU CJ

The accused is charged under s 7 of the Narcotics Act 1967 that at the Fugalei Market on 8 April 2003 he was knowingly in possession of narcotics, namely, one packet of dried marijuana leaves and seeds. He had pleaded guilty to the charge. At the time his plea of guilty was made, the accused was not represented by counsel and he did not want to have legal representation at that time. The case was then adjourned to 13 May for a probation report and sentencing. On that day the accused informed the Court that he had engaged counsel to act for him but his counsel was not then available. The case was then further adjourned for counsel for the accused to appear. When counsel appeared, he informed the Court that he wanted the plea of guilty already entered by the accused to be withdrawn and substituted with a plea of not guilty. The case was then further adjourned for a formal application to be filed setting out the grounds upon which the accused seeks to have his plea of guilty withdrawn and substituted with a not guilty plea. Such application dated 5 June 2003 was duly filed accompanied by a supporting affidavit from the accused.

The grounds set out in the application are: (a) the accused at the time he entered his guilty plea to the charge was not represented by counsel; (b) after receiving advice, the accused now wishes to change his plea; and (c) the grounds set out in the supporting affidavit by the accused. In his supporting affidavit, the accused says that (a) when he entered his plea of guilty to the charge, he was not represented by counsel and had not sought legal advice; and (b) on the basis of the legal advice he has now sought and received, he now wishes to change his plea from one of guilty to one of not guilty. At the hearing of the application, counsel for the accused orally submitted that upon his taking instructions from the accused, there appears to be a defence relating to the mens rea requirement of the charge as the accused may not have had a clear understanding that what he had in his possession were narcotics. This matter does not appear from the grounds set out in the application or in the affidavit of the accused.

Counsel for the prosecution, in opposition to the accused’s application, submitted that the question whether the accused’s plea of guilty to the charge may be withdrawn and substituted with a plea of not guilty is a matter at the discretion of the Court to be determined having regard to the interests of justice. She further submitted that the prosecution would have adduced evidence at the trial if the accused had pleaded not guilty to the charge, which would have shown that the accused has no defence as now raised in the oral submissions by his counsel. It is clear that what counsel for the prosecution had in mind is the verbal admission by the accused to the police that a packet of marijuana was found in the pocket of his pants as well as the evidence of the police officer who found the packet of marijuana in the pocket of the accused’s pants.

Apart from the Court’s inherent jurisdiction to grant a withdrawal of a plea of guilty to a criminal charge, s 54 of the Criminal Procedure Act 1972 provides that a plea of guilty may, by leave of the Court, be withdrawn at any time before the accused has been sentenced or otherwise dealt with. In this case, counsel for the accused, after the accused had pleaded guilty but before sentence was passed, informed the Court that the accused wishes to withdraw his plea of guilty and to substitute it with a plea of not guilty. As a result, sentence has not been passed.

In Police v Mafuao Gaia (2000) (unreported judgment delivered on 11 February 2000), this Court dealt with an application by the accused under s 54 of the Criminal Procedure Act 1972 to withdraw his plea of guilty before sentence was passed and to substitute it with a plea of not guilty. I referred in that case to the principal relevant New Zealand authorities. The guiding principle in the exercise of the Court’s discretion is whether the interest of justice require that leave should be granted to have a plea of guilty withdrawn pending sentence and to substitute it with a plea of not guilty: R v Ripia [1985]1 NZLR 122; R v Turrall [1968] NZLR 312; R v Walsh [1948] NZLR 934, 941. The discretion will be exercised in favour of an application by the accused to withdraw his plea of guilty where the Court is satisfied: (a) that the accused has not really pleaded guilty, (b) that there has been a mistake, and (c) where there was a clear defence: R v Le Comte [1952] 564, 574 referred to in R v Taylor [1967] NZHC 19; [1967] NZLR 577 and R v Turral (supra). It will not be sufficient to support a change of plea if all that has happened is that the accused has repented his plea of guilty and wants to take his chance with a panel of assessors: see R v Ripia [1985] 1 NZLR 122, 128.

In the present case, two grounds are given in support of the application for withdrawal of the accused’s plea of guilty. The first and principal ground which is set out in the application and the accused’s supporting affidavit, is that the accused did not have legal representation and had not sought legal advice at the time he entered his plea. It must be pointed out that the accused was given the opportunity by the Court to engage counsel to act for him. He did not engage counsel. He was willing to plead to the charge without legal representation. The charge was then translated into Samoan to him before he was asked to plead. He gave no indication that he did not understand the nature of the charge. He then willingly pleaded guilty to it. On its own, the first ground does not satisfy the Court to exercise its discretion in favour of granting the application.

The second ground which was only raised in the oral submissions of counsel for the accused at the hearing of this application, but is not expressed in the application or in the accused’s supporting affidavit, is that the accused may not have understood that what he had in his possession were narcotics. As I have said, the charge was translated into Samoan to the accused before he was asked to enter a plea. The charge contains the word "knowingly". The accused gave no indication that he did not understand the charge before he pleaded guilty to it. Counsel for the prosecution had also submitted that the prosecution had the evidence to show that the accused had no defence if he had pleaded not guilty and the case was to proceed to trial. That evidence includes the oral admission by the accused to the police that a packet of marijuana was found in the pocket of his pants as well as the evidence of the police officer who searched the accused and found the packet of marijuana, with which the accused has been charged, in the pocket of his pants. In the circumstances, I am not satisfied that the accused has a clear defence based on what may be a possible absence of mens rea in that he may not have understood that what he had in his possession were narcotics, namely, marijuana substances.

Accordingly, the application is dismissed.

This matter is adjourned to Monday, 18 August 2003, at 9.30am, for sentencing.

CHIEF JUSTICE