Sauqaqa v State [2015] FJCA 16; AAU0002.2012 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No. AAU 0002 OF 2012
(HIGH COURT NO. HAC 007 of 2012)

BETWEEN:

JONE SAUQAQA
Appellant

AND:

THE STATE
Respondent

CORAM : Calanchini P
Lecamwasam JA
De Silva JA

COUNSEL : Mr. J. Savou for Appellant
Ms. J. Prasad for Respondent

Date of Hearing : 6 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] I have read in draft the judgment of Lecamwasam JA and agree with his proposed orders.

Lecamwasam JA

[2] The appellant was convicted by the High Court Judge at Lautoka upon pleading guilty to charges of aggravated robbery and theft of a motor vehicle and sentenced him to a period of 10 years imprisonment with 8 years parole. Being dissatisfied with the conviction and sentence the appellant appealed to the Court of Appeal. The learned Judge who heard the application granted leave to appeal against conviction and sentence.

[3] The facts of the case briefly are that the appellant with two others hired the van driven by the victim and when they reached a deserted area they assaulted the driver, robbed him of $35 Fijian Dollars and the mobile phone, tied him up and pushed him to the rear seat. Thereafter, taking control of the vehicle the appellant with his companions had proceeded to Vitogo, where upon realising that the Police vehicle was following them, had abandoned the vehicle and fled. They were subsequently arrested and produced before the Magistrate.

[4] On a perusal of the Magistrate Court Record I find the accused had been produced before the Magistrate and charges read over and explained, but the case record is silent as to whether they have pleaded guilty or not. However, as it was an indictable offence it had been transferred to High Court pursuant to Section 191 of the Criminal Procedures Decree 2009.

[5] As the charge in the lower court was defective, the appellant had pleaded guilty upon filing of fresh information before the High Court. The case record, in this instance too, is silent as to whether the accused admitted the summary of facts or not. Only reference is that the appellant admits the same summary of facts admitted at the Magistrates 'court. However there is nothing in the record that the appellant admitted the summary of facts in the Magistrates court. Failure to record the admission or otherwise of the summary of facts is fatal to the sustainability of the conviction. Thus there is no material in the record to suggest that the plea was unequivocal. If the summary of facts were admitted by the appellant in this case, it would have been sufficient to establish culpable elements of each charge in the case. Thus, the absence of any evidence in the record to suggest that the plea was unequivocal that is that the accused had admitted the summary of facts, is fatal to the findings of Learned High Court Judge.

[6] The court in Nalave vs State [2008] FJCA 56; AAU 0004.2006; AAU 0005.2006, was of the opinion that it has long been established that the appellate court will only consider an appeal against conviction following a plea of guilty, if there is some evidence of equivocation on the record. In line with R v Vent (1935) 25 Cr. App.R.55 a guilty plea must be a genuine consciousness of guilt, voluntarily made, without any form of pressure to plead guilty. Reiterating my previous observations, there is no evidence to suggest the plea was unequivocal. The Learned High Court Judge has proceeded to the assumption (emphasis added) that the plea was unequivocal when in fact that the nature of the plea is unclear.

[7] Hence it is a fit case for the Court of Appeal to interfere with the judgment of the Learned High Court Judge. In view of the evidence of equivocation on the record I would allow the appeal, set aside the order of the High Court Judge and remit the matter to the High Court at Lautoka.

De Silva JA:
I agree with the findings and conclusions of Lecamwasam JA.

The Orders of the Court are:

1. Appeal Allowed
2. Case remitted to High Court at Lautoka.
   

Hon. Justice W. Calanchini
PRESIDENT, Court of Appeal

Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

Hon. Justice S. De Silva
JUSTICE OF APPEAL