State v Tukai [2003] FJHC 174; HAC0012D.2003S (1 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0012 of 2003

STATE

-V-

JOSEFA TUKAI

Ms B. Malimali for Accused
Ms L. Chandra for the State.

RULING

This case was fixed for sentencing today. Counsel for the accused had objected to the committal to the High Court for sentence but I held that the committal was proper. Counsel now submits that the plea of guilty should be quashed on the ground that it was not unequivocal.

The charge was first laid on the 4th of July, 2002. It is a charge of one count of rape. The case was to be called on the 12th of July, 2002, but no magistrate was available. On the 12th of September, 2002 the accused was asked if he wanted counsel. He said he did and his plea was deferred. On that day also, he told the learned Magistrate that he had reconciled with the victim’s family. The victim’s father confirmed this. The victim is recorded as saying:

“I wish to tell this Court that I did not give my consent to intercourse with the accused.”

The Court adjourned the hearing to the 9th of January, 2003 and ordered the prosecution to disclose the document to the accused. There is no record on the Court file of such disclosure although State Counsel informed me from the bar table that the disclosure order had been complied with on the 9th of January 2003.

On the 10th of April, 2003, the case was called and the charge was again read and explained to the accused. He pleaded guilty, and said he did not need a lawyer. The facts were then outlined. They were that the victim who was aged 15 years, was living with the accused and his family at Dawasamu in Tailevu. She was closely related to the accused. On 12th of July, 2000, she was asleep when the accused raped her, threatening to assault her if she made any noise.

These facts were admitted. The accused has no previous convictions. He said the following in mitigation:

“I have traditionally approached the parents, who accepted traditional apology. After the incident we then moved to Lautoka. We were staying in Naqiri after the incident. Wife is now home and her leg is amputated. A professional plumber and paying for all expenses. I was tempted and promise not to commit the offence again. Really sorry for what happened.”

The Plea

The accused was clearly explained his rights to counsel. He was given ample opportunity to find a lawyer and to apply for legal aid. He chose not to instruct a lawyer, instead telling the Court on 10th April, 2003 that he did not need a lawyer. I find therefore that he was given his rights to counsel and that he clearly and competently waived that right.

However the learned magistrate then had before him an unrepresented accused person facing a very serious charge. Three things needed to be scrutinised in particular, that the accused understood the nature of the change, that the facts outlined disclosed the offence, and that he had said nothing to the police when might have afforded him a defence.

Gates J in State v Isaia Saukova App No HAA0013 OF 2000 said:

“It is essential that a Magistrate he satisfied that an Accursed is admitting facts which amount to all of the legal elements hat go to prove the charge in question..... 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. In Michael Iro v reginam (1966) 12 FLR 104 at 106, the Court of Appeal said:

“In 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.”

The facts of this case provide several grounds for disquiet in this regard. The offence of rape is made up of two elements. One is carnal knowledge, and the other is lack of consent. The facts were outlined to disclose carnal knowledge but they did not disclose the victim’s lack of consent or the accused’s belief in it. One is forced to imply such lack of consent from the accused’s threat to assault her. Sometimes however, the accused’s clear and unequivocal understanding of his plea is evident from his mitigation. This is not so in this case. He said that he was “tempted” and that he had reconciled with the victim’s family. For what act of wrong- doing did he apologise? For having carnal knowledge of a young girl in his charge, or for having carnal knowledge with her without her consent? We do not know. Lastly, both counsel agree that the accused’s caution interview contained a possible defence that the victim consented to the sexual intercourse. This is a matter which could have warned the learned Magistrate that the accused thought that he was only pleading guilty to carnal knowledge. However, it was not brought to his attention and he did not know what the accused had told the police.

In the circumstances I consider that there is uncertainty as to whether the accused clearly and unequivocally pleaded guilty to the offence of rape. I therefore order that the plea be set aside and substituted with a not guilty plea. This case is remitted to the Tailevu Magistrate Court for trial on the basis of a not guilty plea.

Nazhat Shameem
(JUDGE)