Kumar v The State [2004] FJHC 499; HAA0109.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0109 OF 2004L

BINESH KUMAR
s/o Deo Narayan
Appellant

v.

THE STATE
Respondent

Mr. I. Khan for the appellant.
Mr. K. Tunidau for the respondent.

Hearing & Judgment: 29 October 2004

JUDGMENT

On the 29^th October 2004, I allowed the appeal in this matter and remitted the matter to the Magistrates Court for re-hearing by another magistrate. At that time I indicated that I would publish my reasons, which I now do.

The appellant appeared before the Ba Magistrates Court on 30^th June 2004 facing a charge of larceny. He entered a plea of guilty and was convicted.

Statement of Offence

LARCENY: Contrary to section 259 and 262 of the Penal Code, Cap. 17.

Particulars of Offence

BINESH KUMAR s/o Deo Narayan on the 26^th day of June 2004 at Korovuto, Ba in Western Division stole two three ton Toyota Dyna trucks valued at $3,500.00, the property of SUBARMANI s/o Subhaiya.

The appellant appeals against the conviction on the following grounds:

1. That Learned Magistrate erred in law and in fact by convicting me knowing that was unrepresented and not advising me of my legal rights.
   
2. The Learned Magistrate erred in law and in fact by convicting and did not ask whether there was any threat on me when I pleaded guilty.
   
3. The Learned Magistrate erred in law and in fact not advising me whether I wished to be medically examined.
   

4. The evidence does not support a conviction and I was wrongly charged.

The State concedes that the record fails to reveal that the appellant was made aware of his rights pursuant to section 28 of the Constitution of the Fiji Islands and the State accordingly concedes that the plea is equivocal and the appeal must be allowed.

Whilst I am of the view that Magistrates do more often then not advise unrepresented accused of their rights, they very regularly fail to record that fact in the record leaving little choice to this court on appeal but to find that the plea is equivocal.

It is perhaps timely to reiterate the guidance delivered by Madam Justice Shameem in Surend Singh f/n Munna Lal & Ors v The State – Crim. Appeal No. HAA0079 of 2000 where Her Ladyship said:

“For the guidance of magistrates in the future however I suggest the following format before the plea is taken:

1. Before you plead to the charge, I must inform you that you have the right to defend yourself, to instruct a lawyer of your own choice, or if you wish, to apply for a lawyer on legal aid.
   
2. Do you wish to instruct your own lawyer?
   
3. Do you wish to apply for legal aid to the Legal Aid Commission?
   

If the answer is no to (2) and (3) then the magistrate should hear the plea. If the plea is one of “guilty” the magistrate should ask:

4. Are you pleading guilty voluntarily or have you been pressured or induced to do so.
   

An adherence to the above format may reduce substantially the number of appeals filed on the grounds of unfair procedure.”

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004