Raju v The State [2004] FJHC 476; HAA0054.2004L (6 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0054 OF 2004L

ROHIT ASHWIN RAJU
1st Appellant

VIJAY NAIDU
2nd Appellant

v.

THE STATE
Respondent

Mr. I. Khan for the 1st Appellant
Mr. H. A. Shah for the 2nd Appellant
Mr. M. Korovou for the Respondent

Hearing & Ruling: 6 October 2004

EXTEMPORE RULING

The appellants pleaded guilty to the offence of receiving stolen property before the Nadi Magistrates Court on the 8^th March 2004 and were convicted and sentenced to 3 years imprisonment. Particulars are as follows:

Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to section 313(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

ROHIT ASHWIN RAJU s/o Rattan Raju, VIJAY NAIDU s/o Ventesh Naidu and KANDA SAMI GOUNDER s/o Paniappa Gounder between the 29^th day of February, 2004 and the 5^th day of March, 2004 at Nadi in the Western Division received assorted parts of vehicle registration No. EC 340, valued at $22,000.00, knowing the same to have been stolen, the property of RAMESH CHAND s/o Prabhu Ram.

The appellants appeal against conviction and sentence.

The facts as presented to the Learned Magistrate were that on the 29^th February 2004, motor vehicle no. EC 340 was unlawfully taken from Navua. It was driven to Nadi and then taken to the 1^st accused’s place at Solovi. There the parts of the motor vehicle were dismantled by the appellants and another person.

On the 5^th March 2004, the appellants went to Lautoka and sold some parts to a buyer for $1,000.00. On the 6^th March 2004, the police received information that the body of the motor vehicle was abandoned in Tunalia and that some parts were sold in Lautoka.

By virtue of section 309 of the Criminal Procedure Code, an appeal against sentence can only lie on the basis of the legality of the sentence, that is if the plea of guilty is equivocal. This issue has been considered by the Fiji Court of Appeal in amongst other instances in Ram Sami v DPP – Crim. Appeal 034 of 1998 where the court clearly stated that each case must be dealt with on its own particular facts and there must be an intentional and unequivocal admission of guilt by an accused person, adequately informed of the substance of the charge or complaint.

The record of the Magistrates Court shows that all necessary questions and answers to ensure that the requirements were met were asked and answered.

The appellants both filed affidavits and both gave oral evidence before this court and were cross-examined. They both attest that they entered the plea of guilty before the Learned Magistrate on the advice of the police, who told them they would receive a suspended sentence. That they did not require a lawyer. They both tell the court that they are inexperienced in court procedure and have never been before a court before. They further attest that they were assaulted by the police whilst in custody in Nadi Police Station from the afternoon of the 5^th March 2004 until their court appearance on the morning of the 8^th March and that they feared and were in fact threatened with further assault if they did not comply with the directions of the police officers.

They also alleged that they were not advised of their constitutional rights prior to the taking of the records of interview.

A further witness gives evidence before this court on behalf of the appellants, one Partosham, that he attended Nadi, that he attempted to obtain the services of a lawyer on behalf of the appellants, that he attempted to contact Dorsami Naidu, solicitor of Nadi and spoke with his wife, that she said, the appellant should enter a plea of not guilty, have the matter adjourned and her husband could then take over the matter.

He says that at the Nadi Police Station, one Uttam told him not to engage counsel and that he had arranged with the magistrate that nothing would happen and that they would only get a suspended sentence and he should not waste his money on lawyers.

He says he saw the two appellants sitting near the door and that he briefly spoke to one of them who said that he was assaulted by officer, Sushil. He was then told to go and he left the Police Station.

Affidavits were filed and evidence given orally before the court by the police officers involved. The first of those was Uttam Vijay Naidu, who gave evidence denying the allegations by the appellants and by the other witness. He denied that he had in fact been visited by anybody on behalf of the appellants or anybody had spoken to him on behalf of the appellants and he was unavailable to give to the court evidence of any record that the appellants had been advised of their rights to counsel.

The second witness on behalf of the respondent was officer, Sushil Deo, who says that he verbally informed the appellants of the details of the offence but he overlooked, making a note to record that fact. He similarly denies the allegations being made by the appellants and the witness.

Bearing in mind the test as expressed by the Court of Appeal and assessing as best as I can the evidence that has been placed before this court, I am of the opinion that I cannot be satisfied that the pleas of guilty were unequivocal and accordingly, I allow the appeals, quash the conviction and sentence and remit the matter to the Nadi Magistrates Court for trial before another magistrate.

JOHN CONNORS
JUDGE

At Lautoka
6 October 2004