Respondent
Counsel: Mr E. Veretawatini for Appellant Mr W. Kurisaqila for Respondent
Hearing: 24th November 2000
Judgment: 1st December 2000
JUDGMENT
This is an appeal against conviction and sentence. The Appellant was convicted on March 2000, of the followillowing offence:
Statement of Offence
ass=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> WAREHOUSE BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code, Cap.17.
Particulars of Offence
UMESH LAL s/o BRIJ LAL between the 20th day of November 1999 to the 7th daDecember, 1999 at Vunimono, Nausori in the Central divisionision
broke and entered the Warehouse of ABHAY NAND s/o PARMA NAND and stole therein 720 screw drivers valued $3500.00, 144 packets wheel
nuts valued $1500.00, 2 box auto switch valued $700.00, 24 hacksaw frames valued $480.00, 36 Stanley pipe wrenches valued $450.00,
1 Olympia typewriter valued $400.00, 36 Stanley hammers valued $360.00 and assorted toys valued $50.00, all to the total valued $7440.00,
the property of the said ABHAY NAND s/o PARMA NAND.
He was sentenced to three years imprisonment. The grounds of appeal againsviction and sentence are as follows:
“(a) & That the Learned Trial Maal Magistrate failed to take into account the fact that your petitioner was not represented by
Counsel or by Legal Aid;
(b) ;&nbssp; &nsp; &nbs; &nbbp;&nThat the Leae Learned Trial Magistrate failed to take into account the age of the Appellant (23 years old) in awarding sentence;
(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; Tha seneence meted eted out to your Appellant is harsh and excessive in all the circumstances taking into consideration the mitig
cirancespan>
The record shows that the Appellant was represented by Mr E. Veretawatini on 9th December 1999, when tse was first called. The Appellant
was in custody, he pleadpleaded not guilty, and was bailed in the sum of $500.00. Mr Veretawatini told the court - “I am told police
assaulted him during interrogation. We will lodge official complaint.”
On 13th March 2000, the matter proceeded to trial. Mr Veretawatini made no appearance and the Appt appeared in person. The Learned
Magistrate does not appeaappear to have inquired about the absence of counsel on the record. In submissions on appeal, Mr Veretawatini
said that he had sent a message to the Nausori Magistrates Court telling the clerk of the court that he would be late. However this
does not appear on the record, and there is no suggestion that the court received that message, and exercised a discretion to stand
the hearing down.
The hearing proceeded without counsel. The owner of the bulkstore, Mr Abhay Nand gave evidence of the break in, and of the items stolen.
He said that the police later recovered some items, which he then identified at the police station.
A Mr Vinod Prasad gave evidence that he met the Appellant in the town on 4th December 1999. The Appellant was cag tools in two plastic
bags bags, and he asked Mr Prasad to sell or pawn the tools for him. Mr Prasad then pawned these items and was given $3.00 by the
Appellant.
Mr Ramen Prasad (PW3) gave evidence that he relative of the Appellant’s, and that he met the Appellant at the Nausori market on 4th
Dech December 1999. He said that the Appellant tried to sell some toy guns to the toy seller at the market but the toy seller refused
to buy them from the Appellant. The toy seller later accepted them for $15.00. Mr Ramen Prasad was with the Appellant when the toy
seller bought the guns from the Appellant.
PW4 was the toy seller, Mr Arvind Lal. He gave evidence that Mr Ramesad and the Appellant came together to his toy stall and brought
some toys. On 8th Decemberember 1999, the police seized the toys.
Mr Ram Hit, a pawn broker at Nausori Town Council complex gave evidence that h December 1999, the Appellant and a boy called Vinod,
also also known as “Mafia”, pawned some items at his shop. He then paid $50.00 to “Mafia.”
Police Constable 217 Satish Lal gave evidence that he investigthe break-in. He interviewed the Appellant on 8th December 1999, and
read the statement outt out in court. He said that the Appellant gave his statement freely.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Detective Constable Anirudra Kumar gave evidenct he charged the Appellant with the offence, and tendered the charge statement.
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Neither PC Satish Lal, nor DC Anirudra Kumar, were cross-examined by the Appellant on the voluntariness of the police inter.
The Appellant opted to give sworn evidence. He said he had found the stolems on the road and had decided to sell them. Under cross-eoss-examination,
the Appellant said he had found the items near some rubbish on the road. He denied telling anyone that his sister had sent him the
items from Australia. He agreed that he should have reported the matter to the police. He said the police had assaulted him and charged
him. He said he still had a painful ear, and that his medical report was at home. He said he had not been served with any documents
by the police.
The Learned Magistrate then delivered the following judgment:
>
“Accused admitted unequivocally in his interview statement that he was involved in this case of -in. The police have calledalled 7
witnesses and all corroborated with each other.
Prosecution have proved their case beyond reasonable doubt and the accused is found guiltyconvicted as charged.”
The Appellant admitted to 5 previous conviction sk for a concurrent sentence. He was sentenced to 3 years imprisonment.
Lack of legal representation
&
Counsel for the Appellant submitted that the Appellant had a constitutional right to a lawyer under section 28(1)(d) of the Constitution,
and that this right had been breached by the Learned Magistrate.
Section 28(1)(d) of the Constitution provides:
“Every person charged with an offence has the rig defend himself or herself in person or to be represented, ted, at his or her own
expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal
practitioner under a scheme for legal aid.”
This right, which is comparable to the right guaranteed by Article 6(3)( the European Convention on Human Rights, and of section 24
of the New Zealand Bill of Righ Rights, has been said to be a right which is not unqualified. The right to counsel however is given
a broad and purposive interpretation, so as to give effect to the right to a fair trial (Moreiva de Azvedo -v- Portugal 13 E.H.R.R, R -v- Mallinson NZLR (1993) 528, 331).
A failure to accord the accused a right to legal representation may lead e quashing of the conviction, if it appears to the appellatellate
court, that a miscarriage of justice resulted thereby (R -v- Searle (1997) Crim L.R. 898, R -v- Kirk 76 Cr. App. R. 194).
Clearly, where, for instann accused person has been “een “lawyer-shopping” and has dispensed with the services of counsel on the record,
the court has a discretion to proceed without counsel. However, the conviction may be quashed, where it appears that an accused person
has been prejudiced by the lack of legal representation, and that the result of the case might have been different with such representation.
Turning therefore to this appeal, I find that the Learned Magistrate did not appeahave addressed his mind at all, to the right of
the Appellapellant to counsel. Mr Veretawatini was already on the record. The Learned Magistrate did not ask the Appellant where
his lawyer was, or whether he was ready to proceed without a lawyer. If the Appellant had asked for time to be represented, the Learned
Magistrate could have exercised his discretion to proceed regardless, on the ground that counsel had been informed of the hearing
date. As Pathik J said in Gerald Neelamkant Panniker -v- The State Crim. App. No. 28 of 2000:
“The hearing dategiven and .... one can safely say that the Court does not sit for the convenience of counseounsel but for the efficient
administration of justice.”
However, there is nothing on the record to show that thened Magistrate decided to proceed in the absence of counsel, or that the accused
was asked sked about the whereabouts of counsel.
The real issue is whether the Appellant was prejudiced by the absence of counshe record shows that the question of alleged police
assaultsault was raised by counsel on first call. It was clear that the voluntariness of the caution interview was to
be in issue. However, the Appellant failed to cross-examine the police witnesses about the alleged assault. The only evidence of assault
arose on the cross-examination of the Appellant by the prosecutor. I have no doubt that, had the Appellant been represented, both
police officers would have been cross-examined on the Appellant’s allegations, and the Appellant’s evidence on events in the police
station, been led in examination-in-chief. It is also clear from the record that the Appellant had not got with him the witness statements
of the prosecution witnesses, which had been served on counsel.
Furthermore, and most importantly, the Learned Magistrate failed to consider in his judgment, the fundamental rule of the admissibility
of all confessional statements - that of voluntariness. The prosecution had a duty to prove beyond reasonable doubt that the confessions
had been obtained voluntarily, that is, that they had not been obtained by the police as a result of fear of prejudice, or hope of
advantage, or by oppression. Once the question of assault was raised, the trial Magistrate had to direct himself on the admissibility
of the confessions. No doubt, if counsel had been present, he would have reminded the Learned Magistrate of this duty. He was not
present, and the Learned Magistrate failed to consider voluntariness. His very brief judgment indicates heavy reliance on the contents
of the interview.
In the circumstances, the failure to properly considerright to representation, or the question of the admissibility of the confession,
constituteitute material irregularities in the way the trial was conducted.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Recent Possession
State Counsel urges me to dismiss the appeal on the ground that there was sufficient evidence to co without the confession, under
the doctrine of recent possepossession.
In Timoci Cama -v- The State [1988] 34 FLR 130, Palmer J said that the absence of any explanation where an accused person is found in possession of stolen goods, makes an inference
of guilt possible. He referred to the Australian case of May -v- Sullivan [1995] HCA 38; 92 CLR 654, and the English decision of R -v- Ares 34 Cr. App. R. 159 to explain the doctrine of recent possession. That doctrine is that, where the only evidence against the defendant is that he was
in possession of recently stolen property, the Court may infer guilty knowledge if the defendant has offered no explanation to account
for his possession of the property.
The doctrine was available to the Learned Magistrate in this l, and he could have referred to it to explain his decision to convict.
However he did not not do so. Instead it appears that he decided to convict on the evidence of the police interview, and found that
the evidence of possession and subsequent sale, merely corroborated the interview. Furthermore, he failed to consider the Appellant’s
explanation for the possession of the stolen goods, and therefore failed to take his defence into account.
In the circumstances I consider the conviction unsafe, and I quash it accordingly.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Re-trial
This offence was allegedly committed between 20th November 1999 and 7th ber 1999. The offence of breaking and entering a bulkstore
is a serious one, and the publicublic interest demands that suspects be tried for such offences. The Appellant has now served a total
of eight months for this offence, but it appears from the record that he was serving some other prison term which is not included
in the list of previous convictions.
I consider in all the circumstances that an order for retrial is justified, and I order accordingly.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The conviction and sentence are quashed. A re-trial is ordered.
Nazhat Shameem
JUDGE
At Suva
1st December 2000n>
Haa0070j.00s
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