Buliruarua v State [1997] FJHC 285; HAA0021.1997 (24 November 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0021 OF 1997

Between

ATUNAISA BULIRUARUA
Appellant

And

THE STATE
Respondent

Counsel: Mr Samusamuvodres for Appellant
Mr Naigulevu for Respondent

Hearing: 21st and 24th November 1997

Decision: 24th November 1997

ORAL DECISION OF PAIN J

This is an appeal against conviction and sentence. I have heard submissions and formed a clear view. Because of the history of this matter and particularly the fact that the Appellant is due for release in just over a week’s time, it is essential that an immediate decision be given. I will not reserve and give a formal written judgment.

On 6th August 1997 the Appellant appeared in the Navua Magistrates Court on a charge of doing an act with an intent to cause grievous harm pursuant to S.224 (a) of the Penal Code. He pleaded guilty to the charge and after submissions in mitigation were made he was convicted and sentenced to 6 months imprisonment.

I deal first with the appeal against conviction:

The grounds in the amended petition are that the Appellant "pleaded guilty to the said charge without understanding the nature of the charge or without intending to admit that he was guilty of what was alleged" and that the "conviction is unsafe and unsatisfactory". Counsel for the Appellant particularly submitted that the Appellant did not understand the charge and was not intending to admit to using a wheel brace in the commission of an offence.

The Respondent submits that from the record of the Magistrates Court such submission cannot be sustained and the appeal against conviction is precluded by S.309 of the Criminal Procedure Code.

The legal principles to be applied in the case are quite clear. They have been correctly set out by counsel for the Appellant in his written submissions. The question is whether the plea of guilty was equivocal. There can be no appeal against conviction from an unequivocal plea of guilty with knowledge of the offence and facts relied upon. This matter was considered by me in the case of Prem Singh v State (Criminal Appeal No.41 of 1994). I adhere to the principles stated by me in that case. In particular, I said:

"For a plea of guilty to be equivocal it must be made in circumstances that show it is not a complete admission of guilt to the charge. The Court is concerned with what occurred at the hearing before the Magistrate. Something must have occurred to indicate that there was something doubtful or ambiguous in the plea given".

I then went on in that decision to cite an extract from R v Rochdale Justices ex parte Allwork 1981 73 Cr. App.R 319 at page 323. I will not repeat that citation. However, this case of R v Rochdale Justices ex parte Allwork (supra) was quoted with approval by the Court of Appeal of Fiji in DPP v Naidu (Cr.App. No.34 of 1984). I am also guided by this decision of the Court of Appeal. On the basis of a similar record to the record in this case, the Court of Appeal held that the plea of guilty was unequivocal. I would also mention that the record in this case is somewhat similar to the record considered by me in the case of Prem Singh v State (supra) in which I held the plea to have been unequivocal. I also accept the submission of counsel based on the decision of the Court of Appeal of Fiji in IRO v R 12 FLR 106 that the Court has a duty to exercise greatest vigilance in the interests of an unrepresented accused.

The real challenge in this case is against the conviction and sentence of the Appellant on a charge that involved striking the victim with a wheel brace. The submission is made that the Appellant did not understand the nature of the charge and was not intending to admit that he used the wheel brace.

In my view there is no room for any misunderstanding or equivocality about the nature of the charge and the plea of guilty entered by the Appellant. The record shows that the learned Magistrate carefully followed the steps and procedures required by Criminal Procedure Code.

In relation to the use of the wheel brace I am advised that when the Appellant was interviewed by the Police the allegation of hitting the victim with the wheel brace was put to him. He denied using the wheel brace but would have been aware of the allegation and said that he was the only person who assaulted the victim. If that is true he was the only person who could have used the wheel brace.

More importantly, the charge was relatively straight forward. The particulars of the offence were that with "intent to do some grievous harm to the victim he unlawfully wounded the victim with a wheel brace". That is a relatively simple description of the offence which should be easily understood and does not require further elaboration. It specifically states the use of the wheel brace. The record shows that this charge was read and explained to the Appellant. It is expressed in common language. He said that he understood it.

The Appellant then pleaded guilty to the charge. The facts were then given by the prosecutor. In particular, he said that the Appellant "assaulted the complainant without any reason at all. He was injured. Then he also hit the complainant with a wheel brace which was made of iron. The complainant got injured as a result". Again this was a very simple and direct statement that the Appellant hit the victim with the wheel brace. These facts were related to the Appellant in his own language through an interpreter. The learned Magistrate has then recorded that these facts were "admitted by the Accused in full".

The Appellant was then given the opportunity to mitigate. In the course of this he is recorded as saying "I do not know why I hit him. I know I punched him and hit with wheel brace".

Then followed an exchange between the learned Magistrate and the Accused during which the learned Magistrate referred to the hitting of the victim with the wheel brace.

According to the record the learned Magistrate then took an adjournment. Certainly some break would have been required for him to write out his sentencing remarks as contained in the record. These are quite extensive and reasons are given for imposing a prison sentence.

The learned Magistrate did not formally enter a conviction until after the Appellant had mitigated and then answered some questions. At that stage there was nothing to indicate any misunderstanding by the Appellant or dispute about the facts on which the charge was based. It is important to note that at no time did the Appellant deny using the wheel brace although he had ample opportunity to do so. There was nothing to indicate that the plea of guilty to the charge was in any way equivocal. The Appellant was unrepresented, but the learned Magistrate took adequate steps to ensure that the Appellant knew the nature of the charge and the facts alleged against him.

Clearly, after being sentenced, the Appellant has had a change of mind. He now wishes to deny having used wheel brace. He is seeking to be discharged or, at least, to have a re-hearing. There are no grounds for that. He has had his hearing. That hearing was properly and fairly conducted by the learned Magistrate. There are no grounds for the matter to be re-litigated.

In all these circumstances S.309 of the Criminal Procedure Code applies. No appeal lies against the conviction of the Appellant on his plea of guilty except as to sentence.

No specific submissions have been made by counsel in relation to sentence. The amended notice of appeal states that it is manifestly excessive and that the learned Magistrate look into account irrelevant considerations.

The record shows that reasons were given by the learned Magistrate for the sentence imposed. He referred to the unprovoked nature of the assault and the need for deterrence. He particularly stressed the use of a weapon and the need to deter such conduct in the community. In my view a short prison sentence is within the acceptable range for such offending even for a first offender. On the facts of this case I cannot say that the sentence of six months imprisonment is manifestly excessive.

Accordingly, appeals against conviction and sentence are both dismissed.

Justice D.B. Pain