Varawa v The State [2002] FJHC 87; HAA0002J.2002B (23 July 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0002 OF 2002

Between:

PENI VARAWA
SOLOMONI LAGIDAMUDAMU
MIKAELE RATU
ISEI TAGITECI
JOSATEKI NAKIDI
MAIKA NAVIA
ONISIVORO TUVAI
ILAITIA QARANIVALU
Appellants

- and -

THE STATE
Respondent

Mr. H. Robinson for the Appellants
Mr. J. Rabuku for the State

JUDGMENT

On the 8^th of November 2001 all eight (8) appellants and a juvenile appeared 'in custody from Savusavu’ before the Labasa Magistrates Court. They were jointly charged with an offence of Rape. The appellants were unrepresented at the time and the court record indicates that all elected a Magistrate Court trial and all pleaded 'guilty’ to the charge after it was read and explained to them. Thereafter the appellants along with the juvenile were remanded in custody to enable them 'to seek legal advice’ before the facts were outlined to the Court.

The trial was further adjourned on two (2) more occasions to enable counsel from the Legal Aid Commission who now appeared for the appellants, to be provided with relevant disclosures by the prosecution, and to give her time '...... to confirm (her) assessment of the evidence with (her) head office in Suva’. In the meantime the juvenile engaged separate counsel and was successful in getting his earlier plea changed to one of 'not guilty’.

On the 20^th December 2001 when the case was next called in Court counsel for the eight (8) appellants is recorded to have said:

'I have gone through their disclosures and from what they’ve told me and (I have) formed the opinion that they are guilty. But otherwise they maintain they are not guilty. Under the circumstances, seek leave to withdraw appearing for 1^st to 8^th accused.’

This was, if I may say so, an extraordinarily inappropriate statement for counsel to make and reveals a singular lack of understanding and appreciation of her duty and role as defence counsel as clearly set out in Chapter 5 of the Rules of Professional Conduct and Practice which forms a Schedule to the Legal Practitioners Act 1997. In particular, Rule 5.06 which reads:

'...... a practitioner’s duty to defend a person on criminal charges shall not be affected by the practitioner’s opinion regarding the guilt or innocence of the client.’

Furthermore the correct approach to an application by defence counsel to withdraw from a case was discussed in the judgment of the Privy Council in Dunkley v. The Queen (1995) 1 A.C. 419 where their lordships said at p.428:

'In the first place where counsel appearing for a defendant ...... seeks leave to withdraw during the course of the trial, the trial judge should do all he can to persuade him to remain ...... The trial judge should only permit withdrawal if he is satisfied that the defendant will not suffer significant prejudice thereby.’

and, in words that might equally describe what occurred in this case, their lordships continued:

'...... although the judge did not encourage (defence counsel) to withdraw he made no attempt to dissuade him and it does not appear that he considered the possibility (of) alternative representation. Indeed he allowed the trial to proceed as though nothing had happened without even so much as an adjournment until the following morning.’

In somewhat similar vein, in this case leave was readily granted by the Court 'for (counsel) to withdraw appearing for 1^st to 8^th accused’ and 'without so much as an adjournment’ the case continued. The now unrepresented appellants are then collectively recorded to have said:

'We wish to be dealt with now. We had already pleaded guilty. Don’t want any counsel to defend as we are pleading guilty.’

At this point the juvenile who had been jointly charged together with the appellants as the 9^th accused and who, had been permitted to change his plea to 'not guilty’, was released on bail on the application of his counsel with the agreement of the prosecutor.

After that, the trial of the eight (8) appellants continued with the police prosecutor briefly outlining the facts of the case. These were admitted and the trial magistrate proceeded to convict the appellants and, after hearing each in mitigation, the trial magistrate sentenced each appellant to 5 years imprisonment.

The incident is alleged to have occurred at night in a dark house, and, although the appellants police interviews are mentioned in the facts, none were actually produced for the trial magistrate’s perusal nor had he requested them. This 'omission’ is all the more significant when one considers that the complainant’s medical examination report which was produced to the trial magistrate, twice records that '...... she was raped by 4 youths ......’. How '4' became '9'? remains an unresolved mystery which the trial magistrate either ignored or over-looked.

State Counsel on being confronted with the 'poser’ at the hearing of the appeal, sought refuge in Section 309 of the C.P.C. which disallows any appeal against conviction: '...... in the case of a person who has pleaded guilty and has been convicted on such plea by a magistrates court ......’

The Section however, is undoubtedly subject to the Constitution and is necessarily confined in its application to a guilty plea which is 'unequivocal’ not only as to the admitted facts outlined in support of it but also in regard to the circumstances and understanding of the particular accused person [see: the observations of the Fiji Court of Appeal in Ram Sami Naidu v. R. Cr. App. No. 34 of 1984 (unreported) and per Grant C.J. in D.P.P. v. Jolame Pita (1974) 20 F.L.R. 5 at 6 and Gyan Deo v. R. (1976) 22 F.L.R.1 at 2].

In this regard too, in State v. Surend Singh & Others Suva Cr. App. No. 79 of 2000 Shameem J. observed (at p.3):

'The appellate court, may consider the plea ........ whether it was an unequivocal plea of guilty. If for instance, there is evidence of improper pressure on the accused to plead guilty, that plea, the conviction and sentence can be set aside on appeal, and/or (the matter) sent back to the Magistrates Court for re-trial on a plea of not guilty (Brennan (1941) 28 Cr. App. R.41).’

In this latter regard it is significant that defence counsel is recorded to have said, during the course of the proceedings, that she required the prosecution disclosures in order:

'...... to confirm what (the appellants) told me that they had been forced to plead guilty.’

Be that as it may, State Counsel frankly admits that, in the absence of an identification parade and the appellant’s guilty pleas, the prosecution’s case is principally, if not entirely, based on the caution interview records of the appellants and the complainant’s medical report. This Court is not privy to the interview records which each appellant claims was recorded '...... using coercive methods’, and therefore is unaware of the precise admissions (if any) contained therein. Suffice it to say neither was the trial magistrate when he convicted the appellants.

The appellants all lodged individual letters appealing against their convictions and sentences on various grounds and these were subsequently refined and supplemented by formal grounds of appeal filed by counsel which reads:

1. THAT the Learned Magistrate was wrong in law in failing

to advise the appellants to obtain legal advice before allowing them to take a guilty plea.

2. THAT the learned Magistrate was wrong in law and in fact in not appreciating that he was duty bound to advise the Appellants of the implications of a guilty plea especially when they were unrepresented.
   
3. THAT the learned Magistrate was wrong in law and in fact in failing to exercise his discretion judiciously when granting leave to the legal aid solicitor to withdraw from representing the Appellants given the Constitutional rights of the Appellants to be represented.
   
4. THAT the Learned Magistrate erred in law in sentencing the Appellants at the time given the likelihood of a change of plea.
   
5. THAT in the interest of justice and the reversionary powers of this Honourable Court that the conviction be set aside and a retrial ordered.
   

At the hearing of the appeal counsel for the appellants argued grounds 1, 2 & 3 together relying on the unreported judgments of Shameem J. in Surend Singh’s case (op. cit) and Epeli Duve and Others v. State Suva Cr. App. 28 of 2002.

These judgments deal inter alia with the constitutional right of an accused person to counsel; the procedure to be followed by a court in affording the right to an unrepresented accused person; and the circumstances in which the right may be waived by an accused person. There are also helpful observations on the nature of an unequivocal plea and the circumstances in which the Court may exercise its discretion to permit or enter a change of plea.

State Counsel in response, accepted that the trial magistrate had not strictly complied with the procedure laid down in the above-mentioned judgments in so far as the appellants right to counsel was not explained to them before the charge was read and/or their pleas recorded.

Notwithstanding that, counsel submits that the appellants were subsequently advised by the trial magistrate to seek legal advice and they were in fact represented by counsel from the Legal Aid Commission during part of the proceedings, and, accordingly, just as the juvenile had sought through his counsel and was permitted to change his plea, similarly, the appellants could have done the same had they been similarly inclined. Instead, counsel stresses, the appellants maintained their 'guilty’ pleas even after their counsel had withdrawn from the case and, furthermore, the appellants had admitted the facts outlined by the prosecutor which plainly supported the charge.

In the circumstances State Counsel submits that the 'technical defect’ in the procedure adopted by the trial magistrate did not prejudice the appellants in any way or render equivocal their 'guilty’ pleas and therefore, may be safely ignored.

I cannot agree with the submission which assumes in the face of contrary indications, that defence counsel had discharged her duties diligently and with the interests of the appellants at the forefront of her concerns. Also noteworthy, by its absence, is any entry in the court record, that the trial magistrate had, in convicting the appellants, disabused himself of defence counsel’s highly prejudicial opinion: 'that (the appellants) are guilty’.

That is sufficiently to dispose of this appeal, however Counsel for the appellants also doubted the validity of the charge relying on the unreported judgment of Townsley J. (as he then was) in Livinia Tavisa and 2 Others v. State Suva Cr. App. R. 30 of 1997 where his lordship said, in quashing the conviction of the appellants who were jointly charged with Rape, in form, identical to that in the present charge, (at pp.3/4):

'...... whether perfectly valid pleas of guilty should be set aside or not, a clearer reason exists for overturning the findings, conviction and sentences in this case.

It is that the charge and findings or convictions based upon it are void for uncertainty. There cannot be 4 separate acts of Rape rolled up in the one count.

The charge as laid can only refer to one act of rape. It does not specify who was the actual rapist, and who were the aiders and abettors. Such particulars must be furnished to accused where the prosecution is proceeding on one count only of Rape. It cannot relate to 4 different individual acts.

It is only by alleging one offender’s act of rape, and the other three as aiders and abettors, (or otherwise caught as parties to the offence), that one can have a charge in its present form.

The convictions of individual acts of rape by the Appellants cannot stand.’

State Counsel who was somewhat taken by surprise by counsel’s submission on the charge, referred to Section 121 of the C.P.C. as authority for the form of the charge and the joinder of the appellants.

Section 121 of the C.P.C. expressly permits the joinder of the following persons in one charge, namely:

'(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character;

(d) persons accused of different offences committed in the course of the same transaction.’

Having carefully considered the competing submissions I am more than satisfied that the joinder of all 8 appellants in a single charge of Rape is sanctioned under paragraphs (a) and possibly (d) above.

I am also mindful that no objection was ever taken to the form of the charge or to the joinder of all 8 appellants in the one charge. In this regard Section 342 of the C.P.C. relevantly provides that:

'No finding, sentence or order passed by a magistrate’s court ...... shall be ...... altered on appeal or revision on account of any objection to any information, (or) complaint ...... for any alleged defect therein in matter of substance or form ......, unless it be found that such objection was raised before the magistrate’s court whose decision is appealed from, ......’

and the proviso to Section 78(3) of the C.P.C. plainly states that: '...... a formal charge duly signed by (a) police officer shall, for the purposes of this Code, be deemed to be a complaint’.

I am also fortified by the judgment of the Fiji Court of Appeal in Alipate Vokai and 21 Others v. R. (1981) 27 F.L.R. 16 where the Court in rejecting a similar argument as that advanced by counsel for the appellants in this case, said at p.22:

The other aspect of the matter, the allegation that there was wrongful joinder of more than one person in a single count, is more complex. It applies to Counts 1, 3, 6 and 7 only. Section 120 applies to cover cases of duplicity but subsection (2) in our view is intended to apply to more than one offence by the same person, leaving joinder of persons to be covered by section 121. The justification for the joinder in the present case would fall within subparagraphs (c) and/or (d) and we do not find any convincing reason why the words 'charge or information’ as used in the section should be construed as excluding the meaning where appropriate, of 'a count’ in such a charge or information. The elasticity which can be given to the meaning of such phrases is well illustrated by the judgment of their Lordships of the Privy Council in Attorney General v. Hari Pratap (Privy Council Appeal No. 10 of 1969) on appeal from this Court. In our opinion section 121(c) and (d) are to be construed in the light of the words used by Lord Diplock in the House of Lords in D.P.P. v. Merriman (1972) 56 Cr. App. R. 766 at 796 -

'Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant, the jury could find each of them guilty of one offence only;

but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done jointly in aid of one another, did not render the indictment ex post facto bad or invalidate the jury’s verdict against those found guilty. To quote Hawkins again: 'On such indictment ...... some of the defendants may be acquitted, and others convicted; for the law regards the charge as several against each, though the words of it purport only a joint charge against all.’

'That appears to us exactly to cover the counts to which objection is taken here and in our opinion it was open to the learned magistrate to convict or acquit any of the persons included in the charges in question. We therefore reject this ground of appeal.’

For the foregoing reasons the appeal is allowed and the convictions of all eight (8) appellants are quashed and the sentences set aside. 'Not Guilty pleas are entered in respect of each appellant and the case is returned to the Magistrate Court for trial before a different magistrate. The appellants are further remanded to appear before the Magistrate Court on a date to be notified to them within 14 days.

(D.V. Fatiaki)
JUDGE

At Labasa,
23^rd July, 2002.