Gounder v The State [2002] FJHC 139; HAA0057J.2002S (26 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0057 OF 2002

Between:

KRISHAN GOUNDER
s/o Ramana
Appellant

And:

THE STATE
Respondent

Mr J.K. Maharaj for Appellant
Mr D.G. Toganivalu for Respondent

Hearing: 19th July 2002
Judgment: 26th July 2002

JUDGMENT

On 15^th May 2002, the Appellant was convicted of Careless Driving and fined $7.00 on his plea of guilty. The charge read as follows:

Statement of Offence

CARELESS DRIVING:- Contrary to Section 99[1] and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

KRISHAN GOUNDER s/o RAMANA, on the 29^th day of November, 2000 at Navua in the Central Division, drove a private motor vehicle registration number CL 441 on Queens Road at Lobau without due care and attention.

The Appellant now appeals against his conviction on the following grounds:

1. The petitioner was and is a deaf person, aged 76 years, and could not fully hear the court clerk=s interpretation.
   
2. He was asked to plead guilty whilst he did not fully appreciate the consequences of such a plea particularly its effect on the petitioner=s alleged civil liabilities to other parties.
   
3. The petitioner says that his car was bumped from the rear by the complainant=s bus and if he had been given an opportunity to explain the circumstances of the accident, it would have been apparent that the fault was not his.
   
4. The plea of guilty should be set aside.
   

The case was first called in the Navua Magistrate=s Court on 4^th July 2001. The Appellant pleaded not guilty. On 29^th August the matter was adjourned to 7^th November 2001 for hearing. A new hearing date was set, for the 30^th of January 2002, on 7^th November because the court had three other cases to hear. On 30^th January the case did not proceed because the prosecution did not have the file. The case was adjourned to 17^th April 2002. It did not proceed on that day. No reason is given for the adjournment. On 1^st May 2002, the case again did not proceed but a mention date was fixed for 15^th May 2002.

On the 15^th of May the record reads as follows:

ACharge read, explained and understood - yes.

Plea: Guilty.

Summary of Facts as per charge.

Accused - Understand the fact and admit the fact.

First offender.

Mitigation -

I don=t drive any more. Going blind.

78 years old.

First offender.@

The learned Magistrate then recorded:

APlead Guilty. First Offender. Very old. Fined $7.00 in default 1 day imprisonment. Paid in court.@

At the hearing of this appeal, counsel for the Appellant submitted that the plea was equivocal because there was no representation, the Appellant was deaf and going blind, and because the facts had not been properly outlined. State counsel submitted that the plea was unequivocal because the Appellant had originally pleaded not guilty (which indicated that he understood the charge and pleaded guilty later willingly), had not told the court he was deaf and could not hear the proceedings, and, because his mitigation showed a full understanding of the plea.

In the oft-cited case of R -v- Michael Iro (1966) 12 FLR 104, the Fiji Court of Appeal said:

AIn our view there is a duty cast on the trial judge in cases where the accused person is unrepresented to exercise the greatest vigilance with the object of ensuring that before a plea of guilty is accepted the accused person should fully comprehend exactly what that plea of guilty involves. As was said by Lord Reading, CJ in R -v- Golathan (1915) 84 LJKB 758, at 759:

AIt is a well known principle that is man is not to be taken to have admitted that he has committed an offence unless he pleads guilty in plain unambiguous and unmistakable terms@.@

In order to be certain of this principle, an appellate court must consider the facts outlined by the prosecution to ensure that they disclosed all the ingredients of the offence, and did not disclose a possible defence. Where an unrepresented accused person agrees to facts which disclose the offence, and do not disclose a defence, the plea can be taken to be unequivocal.

As Gates J said in The State -v- Isaia Saukova Appeal No. HAA013 of 2000L:

AIt is essential that a Magistrate be satisfied that an accused is admitting facts which amount to all of the legal elements that go to prove the charge in question. Where the Accused is represented by counsel, the Magistrate=s task is easier. Where the accused is unrepresented a more onerous burden is cast on the court. But the Magistrate should ensure that the Accused is not simply pleading guilty out of a feeling of remorse for being involved in a result as opposed to causing a result.@ (emphasis in original).

I am aware that the Magistrates= Courts deal with hundreds of traffic cases a day, and that there is considerable pressure to dispose of those cases to prevent the creation of a back-log. However there can be no compromise with the accuseds= rights to due process of the law, no matter how long the court list might be. As Pathik J said roundly in Petero Adama -v- State Labasa Appeal 4/02, in a case where the Magistrate recorded facts as Amodus operandi same as file 329/02 and 330/01 ....@:

AIt is true that the Magistrates handle a large volume of work but it is no excuse to take >short cuts= so to say, which appears to be the case here.@

In this case, the prosecution did not outline any facts at all. The words Aas per charge@ tell me nothing of the facts of the case. Was there an element of fault? Did the Appellant=s standard of driving fall below the standard expected of a prudent driver? Was there in fact careless driving? We do not know. In his petition of appeal, the Appellant said his car was bumped from the rear by the complainant=s bus and Aif he had been given an opportunity to explain the circumstances of the accident, it would have been apparent that the fault was not his.@ The record shows that the facts of the case were not outlined, and the Appellant had no opportunity to dispute them. An agreement to the facts as charged cannot be a substitute for the requirement under section 206 of the Criminal Procedure Code, to the accused by the court, and that the accused=s admission of the truth of the charge, be recorded.

For these reasons, I am not satisfied that the Appellant=s plea was unequivocal. His conviction and sentence are quashed. As to retrial, the offence was allegedly committed almost two years ago. Given the nature of the charge, and the age of the Appellant, I do not consider a re-trial to be in the interests of justice. There will be no re-trial. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
26^th July 2002