IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

KERETI TULITOA aka KERETI MALIE TAUALA
male of Lepea.
Applicant

AND

POLICE
Respondent

Counsel: J Stowers-Fiu for applicant
P Chang for respondent

Hearing: 13 March 2006
Judgment: 22 March 2006

JUDMENT OF SAPOLU CJ

Nature of proceedings

The Court is concerned in these proceedings with an application under s.54 of the Criminal Procedure Act 1972 to vacate a plea of guilty the applicant has entered to the charges of rape and indecent assault and to have it substituted with a plea of not guilty.

Background

On 1 January 2006, the applicant who is 34 years of age was charged with having indecently assaulted a girl between the age 12 and 16 years. He was then remanded to appear before the Court on 30 January. On 26 January 2006, the police who are the respondent in these proceedings filed the more serious charge of rape against the applicant in relation to the same girl who is the subject of the indecent assault charge. It was not possible for the applicant to appear on 30 January but he did appear the next day, 31 January. He was not then represented by counsel.

It is the practice of the Court when a criminal charge is called and the accused person appears without counsel to ask the accused if he wants to engage counsel. If the accused says yes, the charge will then be adjourned without plea, usually for two weeks, to give the accused the opportunity to engage counsel. If the accused says he does not want to engage counsel, he will then be asked if he is in a position to enter a plea to the charge. If he says yes, the charge will then be read out to him, usually in Samoan unless the accused is a foreigner, and he will be asked as to how he pleads. If the accused pleads guilty, the matter is then adjourned for a fortnight for a probation report and sentencing and for the prosecution to prepare and produce a summary of facts. If the plea is one of not guilty, a hearing date will then be set.

There is no dispute that that practice was followed in this case. The applicant appeared on 31 January and when asked whether he wanted to engage counsel to act for him he said no. When he was further asked whether he was in a position to plead to the charges against him he said yes. Each of the two charges was then read out to him in Samoan and he pleaded guilty to both charges. The applicant was then remanded in custody and the matter was adjourned to Monday 13 February for a probation report and sentencing. On 8 February, counsel was instructed to act for the applicant.

When the matter was recalled on 13 February the accused appeared with his present counsel Ms. Stowers-Fiu who informed the Court that an application has been filed to have the applicant’s plea of guilty to the charges withdrawn and to be substituted with a plea of not guilty. The matter was then further adjourned to 20 February for the applicant to file an additional affidavit to his affidavit already filed in support of his application. Bail was granted to the applicant at the same time on application from his counsel. On 20 February the accused filed his additional affidavit. The matter was then further adjourned to 13 March for hearing the present application.

Grounds of application for change of plea

Counsel for the applicant submitted three grounds in support of the present application.

These are:

(a)	the applicant at the time he entered his guilty plea to the charges was not represented by counsel;

(b)	when the applicant appeared and entered his guilty plea he was under pressure to plead guilty to the charges from his mother and aunty; and

(c)	the applicant is entitled to a right to a fair trial particularly under Article 9(3) of the Constitution which provides that every person charged with an offence shall be presumed innocent until proved guilty according to law.

The affidavit evidence

In support of the application two affidavits dated 8 February 2006 and 17 February 2006 respectively, were filed by the applicant. In those affidavits the applicant says that when his case was called on 31 January 2006 and he pleaded guilty to the charges against him he was not represented by counsel. He also says that he did not want to plead guilty but he pleaded guilty due to pressure from his mother and aunty who told him to go and plead guilty because their family is financially weak and cannot afford to pay for a lawyer. Furthermore, he would come out much earlier if he pleads guilty. The applicant then says that when the registrar asked him whether he pleads guilty or not guilty he looked at his mother who was in Court and remembering what she had said to him earlier pleaded guilty to the charges. His case was then adjourned to 13 February for a probation report and sentencing and he was further remanded in custody.

On 8 February counsel was engaged to act for the applicant and counsel interviewed the applicant. The applicant then says in his affidavits that having been properly informed and advised by his lawyer he became aware that he is entitled to legal representation and advice before he entered his plea to the charges. He also says that he now honestly believes that he has several arguable defences available to him.

The applicant says in his affidavit of 17 February 2006 that he clearly recalls that when he was interviewed by police sergeant Samuelu Afamasaga, he was still under the influence of alcohol and was not fully aware of his rights explained to him by the police officer. He also says that when sergeant Afamasaga asked him whether he still denied the charges against him he replied yes but the police officer then told him to sign a statement which he signed without any idea of what he was told to sign. This statement is not in issue in these proceedings and therefore I need not refer to it again.

In the affidavit of 8 February 2006 by sergeant Afamasaga, the police officer says that on 18 January 2006, he informed the applicant of his legal right to contact a lawyer and asked the applicant if he understands that legal right to which the applicant replied that he did. He then asked the accused whether he wanted to contact a lawyer and the applicant declined to contact a lawyer. The police officer says that he also informed the applicant of his right to have a lawyer to represent him in Court but the applicant replied he understood that right but did not want to have a lawyer to represent him in Court. The police officer further says that he informed the applicant of the charges against him, namely, rape and indecent assault, and asked the applicant whether he understood those charges and the accused acknowledged that he understood the charges.

Principles relevant to exercise of Court’s discretion in an application for change of plea from guilty to not guilty.

This Court has on a number of occasions had to deal with pre-sentence applications by accused persons for change of plea from one of guilty to one of not guilty: see Police v Mafuao Gaia [2000] WSSC 3 (judgment delivered on 11 February 2000); Police v Maina Sio [2000] WSSC 5 (judgment delivered on 16 May 2000); Police v Reopoamo Ekalesia [2003] WSSC 13 (judgment delivered n 13 August 2003); and Attorney-General v Onosa’i Nofoaiga [2004] WSSC 13 (judgment delivered on 8 November 2004). The relevant principles to the exercise of the Court’s discretion in such applications are discussed in those cases. The overall guiding principle in the exercise of the Court’s discretion is whether it is in the interests of justice that leave should be granted to have a plea of guilty withdrawn and to substitute it with a plea of not guilty. The discretion will be exercised in favour of an application for change of plea where the Court is satisfied that: (a) the accused has not really pleaded guilty; (b) there has been a mistake, or (c) there is a clear defence. But it must be borne in mind that the overall guiding principle is what the interests of justice require.

Application of principles to this case

Applying first the specified principles on which the Court will exercise its discretion in favour of a pre-sentence application for change of plea, namely, the accused has not really pleaded guilty, there has been a mistake, or there is a clear defence, the first question for consideration is whether the applicant really pleaded guilty. In my respectful view, there is nothing to show that the applicant did not know that he was pleading guilty to the charges against: He was asked whether he was in a position to plead to the charges and he said yes. The charges were then translated in turn to him and he was asked as to how he pleads and he said guilty. In his own affidavits the applicant also acknowledges that he did plead guilty to the charges. So the applicant was well aware that he was pleading guilty. It therefore cannot be said that the applicant was not really pleading guilty. See the application of this principle in R v Jack Taylor [1967] NZLR 577 by Tompkins J at p. 578 in which the charge was one of rape as it is in this case.

In respect of the second of the specified principles, namely, that there has been a mistake, there is also nothing to show that there was a mistake on the part of the applicant in his pleading guilty. There is nothing to show that the applicant did not understand the charges to which he was pleading guilty. The applicant simply says in his affidavits that he was not at the time represented by counsel and that his mother and aunty had told him to plead guilty. He also says that he has been advised by his present counsel that he has several defences, a matter I will deal with separately later. It was also submitted on the applicant’s behalf that the applicant had very limited education and therefore does not have the ability to assess the offences with which he had been charged. However, the applicant in his affidavits does not say that he was not able to assess the offences he had been charged with or that he did not understand the nature of the charges. From all the material before the Court, I am not able to conclude that there was a mistake on the part of the applicant in his pleading guilty. Again see the application of this principle in R v Jack Taylor [1967] NZLR 577 by Tompkins J at p. 578.

As for the third of the specified principles, namely, that there is a clear defence, the applicant says in his affidavits that after receiving legal advice from his counsel, he now honestly believes that he has several arguable defences. However, it is not stated what those arguable defences are. Maybe there are defences but I do not know what they are or whether they are clear defences. The onus is on the applicant to satisfy the Court that he has a clear defence to the charges. He has not discharged that onus. Again see the application of this principle in R v Jack Taylor [1967] NZLR 577 by Tompkins J at p. 578.

I turn now to consider whether this pre-sentence application to reverse the applicant’s plea of guilty can be supported on any other ground under the overall guiding principle of what the interests of justice require. As mentioned earlier, the applicant says in his affidavits that he was not represented by counsel at the time he entered his plea of guilty. However when the applicant was asked by the Court whether he wanted to engage counsel he replied that he did not. He was then asked whether he was in a position to plead to the charges and he said yes. The charges were then translated into Samoan to him and he was asked as to how he pleads and he pleaded guilty. Police sergeant Afamasaga, who interviewed the applicant, has also deposed in his affidavit that at the time of the interview he informed the applicant of his rights which include his right to have a lawyer to represent him in Court and the applicant replied that he understood that right but he did not want to have a lawyer to represent him in Court. What the police officer says in his affidavit is consistent with what the applicant told the court that he did not want to engage counsel.

From what was placed before the Court, it does not appear that the applicant had not really pleaded guilty, or there was a mistake on his part in pleading guilty, or he has a clear defence he was not aware of, or for some other reason there has been a miscarriage of justice as a consequence of his not being represented by counsel at the time he pleaded guilty to the charges. I am conscious of the gravity of the charges of rape and having indecently assaulted a girl between the age of 12 and 16 years but the gravity of the charges cannot really affect the principles of law which are applicable: R v Turrall [1968] NZLR 312 per Hardie Boys J at p.314. In R v Ripia [1985] 1 NZLR 122, applications made in the then Supreme Court of New Zealand at the pre-sentence stage of proceedings to reverse a plea of guilty to a charge of rape were refused. The gravity of the charge of rape did not affect the application of the relevant principles of law. On appeal to the then Court of Appeal of New Zealand, the appeal was dismissed.

What is to be noted is that it has not been established that a miscarriage of justice has occurred because the applicant was not represented by counsel at the time he entered his plea of guilty so that the interests of justice require that the applicant should be granted leave to withdraw his plea of guilty and to have it substituted with a plea of not guilty. The cases of R v Le Comte [1952] NZLR 564 (cited by both counsel) and R v Jack Taylor [1967] NZLR 577 were also concerned with applications to reverse guilty pleas by accused persons who were not represented by counsel when they entered their guilty pleas and the applications in both cases were refused. Thus the absence of counsel at the pleading stage would not necessarily result in a reversal of a guilty plea.

The applicant, as mentioned earlier, also says that at the time he pleaded guilty he was under pressure as his mother and aunty had told him earlier on to plead guilty because their family is financially week and cannot afford a lawyer and that he would come out much earlier if he pleads guilty. The applicant also says that when the registrar asked him whether he pleads guilty or not guilty he looked at his mother who was in Court and remembering what she had said to him earlier pleaded guilty to the charges. It does not appear that because of what the applicant was told by his mother and aunty and the presence of his mother in Court the applicant did not really plead guilty, or that there was a mistake on his part in pleading guilty, or that he was not aware of any clear defence, or for some other reason the interests of justice require that he should be granted leave to reverse his guilty plea. I do not have to consider in this case whether a plea of guilty induced by improper conduct on the part of the prosecution would justify a reversal of such plea in the interests of justice.

Counsel for the respondent submitted that it is not a sufficient ground to grant leave to withdraw a plea of guilty merely because an accused person has repented his plea of guilty and, on legal advice, thought that he should take his chance with a panel of assessors. On this point in relation to a jury see R v Le Comte [1952] NZLR 564 at p. 569; R v Jack Taylor [1967] NZLR 577 at p. 579 and R v Ripia [1985] 1 NZLR 122 at p. 128. Whilst the charge of indecent assault can be tried before assessors on the election of an accused, the charge of rape is required by law to be tried before assessors. In fairness to the applicant, his counsel did not raise that the applicant has repented his guilty plea and wants to take his chance with assessors.

Counsel for the applicant submitted that there are no trial documents available to the applicant and for that reason it is impossible to assess the merits of the case by the respondent against the applicant other than on the basis of the interview with the applicant. Counsel for the applicant, of course, may request copies of the trial documents from the respondent. But in the absence of any trial documents I cannot determine whether the evidence by the respondent supports the charges or discloses a clear defence to justify a reversal of the guilty plea. If counsel for the applicant obtains copies of the respondent’s trail documents and finds there is valid ground to re-apply for a change of plea, then it is arguable that before sentence a Judge may hear a further application to reverse a guilty plea even though he has dismissed an earlier one: R v Ripia [1985] 1 NZLR 122 at p. 123.

Counsel for the applicant also submitted that under Article 9 of the Constitution the applicant is entitled to a fair and public hearing and under Article 9 (3), in particular, the applicant is to be presumed innocent until proved guilty. With respect to counsel, I am of the view that Article 9 does not prevent an accused from pleading guilty to a charge or prevent the Court from declining an application for change of a guilty plea before sentence. To hold otherwise would mean that a guilty plea may be withdrawn at any time for any reason, proper or improper, before or after sentence even though the interests of justice may not justify such withdrawal.

For all the foregoing reasons the application is dismissed.

CHIEF JUSTICE