Tuitokova v The State [2005] FJHC 460; HAA0067J.2005S (30 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0067 of 2005S

Between:

APOROSA TUITOKOVA; and
AMENATAVE QALITUIGAU
Appellants

And:

THE STATE
Respondent

Hearing: 16th September 2005
Judgment: 30th September 2005

Counsel: Ms B. Malimali for Appellants
Mr. A. Rayawa for State

JUDGMENT

The Appellants appeal against conviction and sentence imposed by the Suva Magistrates’ Court on the 14^th of April 2005. They were charged with Arson. It was alleged that on the 28^th of February 2005 at Malawai Village, Gau, they wilfully and unlawfully set fire to the house of Waisake Tuimaloku, a house which was valued at $20,000.

The case was first called on the 8^th of March 2005. The court record reads as follows:

“Charge read and explained and understood.

Right to counsel: Waive Right to counsel.

Election: Elect Magistrates’ Court trial.

Plea: We understand the charge we admit it. We admit it on our own accord.

Court: Remanded for facts and sentencing.”

The case was next called before another Magistrate on the 11^th of March 2005. The charge was again explained to the Appellants in Fijian. The record reads:

“Accused: We maintain our guilty plea. We do not wish legal representation. We committed the offences. Pleaded guilty on our own free will.

Facts: Refer to Summary of Facts, read in Court, explained to accuseds and understood. Tendered as Exhibit 1. They admitted the offence to police. Charged for the offence.

Accused 1 & 2: We admit facts.”

The facts were that on the 28^th of February 2005 the complainant went for a shopping trip in Suva. His wife and three children were out in the village. The Appellants decided to burn their house down. They collected kerosene in a tin and poured it over some dry pandanus leaves in the kitchen. They then lit the fire. The fire spread to the house causing damage to the value of $20,000. The Appellants fled from the scene. The villagers tried to put out the fire but were unsuccessful. Under interview, the Appellants admitted the offence and said that they had done what they did because the victim was practicing witchcraft. They also said that they had a dispute over a chiefly title.

Neither of the Appellants had previous convictions. In mitigation the 1^st Appellant said that he was 19 years old and educated up to Form 3. He lived with his grandfather. His parents lived in Suva. He expressed remorse and promised not to re-offend. The 2^nd Appellant was 19 years old and had reached Class 8. He lived with his parents in the village. He expressed remorse.

The Appellants were sentenced on the 14^th of April 2005. After reviewing the facts, she set out the aggravating and mitigating factors. She said that they had committed the offence wilfully and that as a result there was tension in the village. She started at 7 years imprisonment but reduced it to 5 years to reflect the mitigation.

The main ground of appeal against conviction is that the plea was equivocal. The Appellants said in their letters of appeal that they had been assaulted by the police at Nacavanadi Police Post and that they pleaded guilty out of fear. They say that they were in police custody for 6 days before being brought to court and that they did not understand the nature and elements of the charge.

The State opposes the appeal saying that the question of police assault is irrelevant to the question of the plea. State counsel said that the charge was explained to the Appellants and they said they understood it.

Counsel for the Appellants say that although the Appellants were told of their right to counsel, they were prejudiced by lack of representation because the facts do not disclose the mens rea for arson. She said that the Appellants were young first offenders and that if represented they would have pleaded not guilty.

The court record is quite clear on waiver of legal representation. The Appellants opted to appear unrepresented and this was not a case which proceeded to plea, facts and sentence on first call. The matter was adjourned from the 8^th of March to the 11^th of March and the charge was explained to the Appellants twice, by two different Magistrates. They both assured the Magistrates on two occasions, that they were pleading guilty voluntarily and not under pressure. They were not entitled to disclosure on a guilty plea because the purpose of the law of disclosure is to ensure a fair trial. With a guilty plea the prosecution is not obliged to call any evidence at all.

In relation to the complaint that the facts do not disclosure the offence, the offence has several elements. One is that the accused acted wilfully, another that he acted unlawfully, the third element is that he set fire to a dwelling house. The facts disclosed all these elements, including the mental element. The facts were that the Appellants planned to set fire to the house for a motive, and that they planned the arson carefully. Clearly the wilful and unlawful nature of the fact was set out in the facts. Further the Appellants agreed that they planned the arson and gave effect to it by lighting a match to dry pandanus leaves. There can be no clearer indication of the mens rea. Finally their admissions to the police, and their mitigation indicate an acceptance of guilt. When the admissions were referred to in court, they failed to tell the Magistrate of the alleged police brutality.

I am therefore not persuaded that the pleas were equivocal. Indeed the learned Magistrate took great care to ensure that the Appellants understood the charges and the facts. Lack of representation notwithstanding the appeals against convictions must fail.

There only remains the sentence appeal.

Nazhat Shameem
JUDGE

At Suva
30th September 2005