Police v Ratumu [1998] CKHC 2; Cr 174 197.1998 (19 June 1998)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
CRIMINAL DIVISION

CR 174, 197/98

POLICE

v

SAMUEL RATUMU
Defendant

Sgt Elikana, Cook Islands Police, for Informant
Mrs Browne for Defendant

Date of Hearing: 15 June 1998
Date of Judgment: 19 June 1998

JUDGMENT OF QUILLIAM CJ

On 15 May 1998 the defendant was arrested by the Police, and on the following day was charged under s. 216 of the Crimes Act 1969 with common assault, an offence carrying a maximum sentence of one year's imprisonment. He appeared before a Justice of the Peace, did not enter a plea, and was remanded to appear again on 21 May 1998.

On that date he appeared again and pleaded guilty. The Police requested that no conviction be entered because it was proposed to lay a further charge. The Criminal Record Book shows, however, that a conviction was entered, and the defendant was remanded to appear for sentence on 28 May 1998.

On that date he appeared again, by which time the Police had filed further information charging the defendant under s. 209(1) of the Crimes Act with injuring with intent to cause grievous bodily harm, an offence carrying a maximum sentence of ten years imprisonment. The Police then sought leave to withdraw the common assault charge and the Justice of the Peace declined jurisdiction and referred the matter to a judge. The issue for determination was later stated to be:

"Whether defendant is entitled to plead autrefois convict to the more serious charge after a conviction has been entered on the lesser charge but awaiting sentence."

Section 24 of the Judicature Act 1980-81 provides that a Justice may decline jurisdiction and in that event the matter must be dealt with by a Judge and in that event the Judge is to "deal with the information in all respects as a rehearing." That is the situation in the present case.

There are two matters which now require consideration:

1. The Police have renewed their application for a withdrawal of the common assault charge, and it is necessary to decide whether it is permissible to do so and, if so, whether the circumstances require that leave to withdraw should be given.

2. Whether, if leave to withdraw that charge is for any reason not given, the defendant can rely on a plea of autrefois convict as a defence to the more serious charge.

1. Withdrawal

Section 46(1) of the Criminal Procedure Act 1980-81 provides:

"46(1) Withdrawal of information by informant - Any information may by leave of the Court be withdrawn by the informant at any time before the defendant has been convicted or the information has been dismissed or, in any case where the defendant has pleaded guilty, before he has been sentenced or otherwise dealt with."

What occurred in the present case is that the Police followed a very well-recognized procedure. The incident giving rise to the arrest of the defendant took place on the 15 May 1998 and the defendant was held in custody overnight. As was required he brought before the Court the next morning. The charge was one sufficient for the Police to hold him, but would not necessarily reflect the full facts which were unlikely to be known at that stage. Again, in accordance with usual practices, the defendant was not asked to plead.

He appeared again on 21 May 1998. The Police were evidently not yet ready to file any further charge but the Justice was informed that some further charge or charges would be laid and that accordingly no plea should be taken at that stage. Nevertheless, the defendant was asked to plead and did so. On his plea of guilty he was convicted.

On 28 May 1998 the Police asked for leave to withdraw the charge of common assault, but leave was declined.

Now, the Police have renewed their request to be able to withdraw the charge and, in terms of s. 24 of the Judicature Act, I am required to deal with the information in all respects as a rehearing.

It is necessary first to consider whether the withdrawal is permissible following the entering of a plea of guilty and the recording of a conviction. That is readily disposed of by the express words of s. 46(1) of the Criminal Procedure Act, set out above. In a case such as this, leave to withdraw may be given "where the defendant has pleaded guilty, before he has been sentenced..."

I am unable to accept the submission on behalf of the defendant that the words of s. 46(1) are unclear. I derive assistance in this from the decision of the Court of Appeal in the New Zealand case of Collector of Customs v. Woolley (1980) 1 NZLR 417. That was a case in which two informations were laid at the same time, one of them for a substantially more serious charge than the other. The issue was as to whether the defendant was entitled to enter a plea of guilty to the lesser charge and then rely on that as a defence of autrefois convict to the more serious charge. The principles which emerge from the judgments in that case, however, are in my view of application to the present case.

Cooke J (as he then was) referred to the provisions of s. 36 of the Summary Proceedings Act 1957 which, so far as withdrawal is concerned are identical with s. 46(1) of the Cook Islands statute. At p. 423 he said:

"So in a case of a guilty plea leave to withdraw the information can be given even after conviction, if the defendant has not yet been sentenced or otherwise dealt with."

That is precisely the situation which applies here.

A further submission was based upon s. 67 of the Criminal Procedure Act, which provides:

"67. Second accusation - (1) Where an information charges substantially the same offence as that with which the defendant was formerly charged, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to the information."

This was relied on for the submission that the conviction already entered against the defendant was a bar to the second information. This begs the question of when the conviction is complete. Having regard to the provisions of s. 46(1) and to the judgments of the Court of Appeal in Woolley's case I consider that a conviction cannot be said to be complete until after the defendant has been sentenced or otherwise dealt with.

The only question then is whether leave ought to be given. Whether the police should have been in a position to file the more serious charge sooner than they were I am unable to say.

There does not appear to have been any gross delay, and the Police informed the Court that a further charge or charges were intended. The Justice was asked not to enter a conviction, and there seems little further the Police could have done. When, on the subsequent appearance, the more serious charge had been laid and the Police sought to withdraw the lesser charge I can see no reason why that should not have been allowed. This is particularly so in view of the fact that the question of a plea of autrefois convict was raised.

Looking at the matter as on a rehearing I am satisfied that the charge of common assault should be able to be withdrawn, and leave to do so is accordingly given.

2. Autrefois convict

In view of the decision just given it is unnecessary to consider this question further. I am bound to say that the authorities seem to support the view that the plea of guilty and entering of a conviction would not have been sufficient to support a plea of autrefois convict as the conviction was not complete until after sentencing. However, with the lesser charge having been withdrawn, the more serious charge must be free to proceed.

Conclusion

The defendant is to appear on a date to be fixed by the Registrar in order to answer the remaining charge of injuring with intent.

CHIEF JUSTICE