Ali v The State [2004] FJHC 138; HAA0063.2004 (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0063 OF 2004

BETWEEN:

FAIYAZ ALI
f/n Hassan Ali
Appellant

AND:

STATE
Respondent

Counsel: Mr. E. Veretawatini - for the Appellant
Mr. D. Toganivalu - for State

Date of Hearing: 11th August 2004
Date of Judgment: 20th August 2004

JUDGMENT

Introduction

The appellant was alleged to have dangerously driven a motor vehicle on Ratu Mara Road on the 27th of September, 2002 and at the same time it is alleged he was under the influence of intoxicating liquor to such an extent that he was unable to have proper control of the car.

The curial history of the matter is important and is accordingly repeated here in full:

Date	Action
31 October 2002	1st Appearance
15 November 2002	Adjourned for 1 month to allow legal instruction
6 December 2002	No appearance. Warrant issued.
23 December 2002	Warrant cancelled. Fresh bail. Adjourned for mention.
24 January 2003	Hearing date set.
19 May 2003	At Prosecution request hearing vacated and adjourned. Application supported by appellant. New hearing date set.
5 August 2003	Court unable to proceed. New hearing date set.
5 November 2003	Adjournment at defence request.
10 February 2004	Appearance and plea.

The appellant has throughout been represented by counsel. He has maintained his not guilty plea since the 19th of May, 2003. Indeed on occasions he has been ready to proceed to a defended hearing. He appeared on the 10th of February, 2004 unrepresented. His counsel was late for Court but had at least done the courtesy of faxing an explanation for his lateness and requesting that his matters be stood down until 11.00am that morning. The case was called. A plea of guilty is recorded to the charges.

Counsel subsequently appeared as recorded at 10.05am and asked for his client’s plea to be vacated as it was entered in error.

The Court adjourned to consider the matter and gave a ruling the following morning which reads as follows:

“As appears from the Court record and Counsel’s statement in Court today, the Accused knew what he was charged with and that he had instructed his Counsel to deny the charge and accordingly pleaded not guilty on 19.5.2003.

Yesterday, his Counsel was absent when the case was called for hearing and the accused then decided, without any prompting, that he was changing his plea to guilty after which the court proceeded with the matter and ordered a total fine of $700.00 in both counts.

I am of the view that the Accused made an unequivocal plea of guilty when the charge was read and explained to him. I will therefore not set aside the guilty plea. I am however prepared to vacate my sentence to allow counsel to mitigate on behalf of his client”.

The Appeal

The appellant is represented. He filed 5 grounds of appeal. In essence he wants his conviction overturned and the matter referred back to the Magistrates Court for hearing.

In support of those grounds on appeal counsel has filed very helpful points and authorities. It is claimed the guilty plea was equivocal. The defendant was expecting his counsel to be present. He misunderstood the situation and entered an incorrect plea. He had never intended to do so. The events of the moment overtook him.

The State accepts the factual background. Counsel quite properly does not strongly oppose the appeal.

Decision

A decision given by my sister Justice Shameem is particularly relevant to this case. It is a decision of Epeli Duve, Milio Vuetibau and Minilote Vakavanua v The State, Criminal Appeal No. HAA0028 of 2002. At page 14 of the judgment, her honour said:

“Although lack of legal representation at the time the plea is taken, does not inevitably lead to a vacating of the plea when counsel later appears, the question of whether the accused might have benefited from legal advice before pleading guilty of an offence in respect of which he might have a defence is a relevant factor is the exercise of this discretion. It was held in R -v- Bournmouth JJ ex p Maquire (1997) COD 21 DC (cited in Archbold 202 Para 4-187) that an application for change of plea should be allowed if the court is satisfied that it is arguable that the prosecution case would not be able to establish all the essential ingredients of the offence.”

Earlier in the judgment when referring to an argument raised on 28(1)(d) of the Constitution (the right to counsel) her honour commented:

“As I have said before, on the basis of authorities from jurisdictions which have the same Constitutional or legislative provision, the duty to inform accused persons of this right, rests on the court before which the accused are first brought. The right must be explained to them before the charges are read to them. A waiver of the right will not be lightly implied, and any specific waiver must be recorded before the court can proceed to take the pleas (State –v- Surend Singh and Others, Crim. App. No. HAA0079 of 2000).

When the court proceeds without counsel, a heavy duty rests on it to ensure that the accused are not prejudiced by lack of legal representation. The more serious the charge, and more difficult or complicated the defence, the heavier the duty is upon the court to ensure lack of prejudice.”

In this case the State does not dispute that there was a breach of this right. The right was certainly not explained to the accused and there was no competent waiver. The record for the 10th of February, 2004 simply indicates that the charge was read and acknowledged and a plea of guilty was entered.

In circumstances where the accused has been represented over a lengthy period of time and then appears unrepresented for a hearing the court must be vigilant to ascertain that any decisions made by the accused are unequivocal and proper. At the very least the accused in these circumstances should be re-warned of his constitutional rights and a clear and unequivocal waiver of representation must be obtained before noting a vacation of the not guilty plea and the entering of a new guilty plea.

The safest course before taking a change of plea in these circumstances is to allow the accused a short adjournment to make enquiries of the anticipated counsel.

Conclusion

I find here that this accused was prejudiced by the absence of counsel. It is a fair inference that the plea was one of convenience only and not a sincere acknowledgment of guilt. The failure to re-advise the accused of his right to counsel before the new plea was taken is in breach of his s.28 right to counsel. The plea of guilty and the conviction are set aside. The case is remitted to the Magistrates Court to proceed to trial before another Magistrate on the basis of a not guilty plea.

Gerard Winter
JUDGE

At Suva
20th August, 2004