Lal v State [2008] FJHC 51; HAA017.2007 (28 March 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No.: HAA 017 of 2007

BETWEEN:

SURUJ LAL
Appellant

AND

THE STATE
Respondent

Counsel: Mr. D. Prasad for the Appellant
Ms. P. Madanavosa for the State

Date of Hearing: 14 March 2008
Date of Ruling: 28 March 2008

RULING

1. Suruj Lal, this is your appeal against your conviction and sentence in the Magistrates’ Court.
   
2. You had pleaded guilty to a charge of Indecent Assault, contrary to section 154(1) of the Penal Code Cap 17 [PC]. The particulars of the offence are that you on the 16th day of December 2007 at Samabula in the Central Division unlawfully and indecently assaulted one Paulini Adicokia by squeezing her breasts.
   

Background Facts

3. The Court Record shows that you were charged on 31 December 2007 in Suva Magistrate’s Court Case No: 2293/07. On the same day you appeared before the learned Magistrate. The charge was read and explained to you. You waived your legal rights.
   
4. You pleaded guilty. Following your plea, a summary of facts were read to you in court and you admitted it. You were convicted and remanded in custody pending sentence on 4 January 2008. You were sentenced to 9 months imprisonment.
   
5. You engaged your current counsel to appear for you at your sentence. When counsel appeared and informed the court that he was your counsel, he was informed by the learned Magistrate that you were asked on 31 December 2007 before you entered your plea, whether you wanted to be legally represented, to which you replied that you waived your rights.
   
6. You now appeal against conviction and sentence.
   

Ground of appeal

7. On the 7 January 2008 in support of your Petition of Appeal, your counsel submits the following grounds of appeal:
   
   1. The learned Magistrate erred in law in not explaining to you the charge and the seriousness of the charge;
      
   2. The learned Magistrate erred in law in relying that you have waived your right to legal representation when he is under a statutory duty to explain to you that such a charge carries a maximum 5 years imprisonment and ought to seek legal advise or legal aid;
      
   3. The learned Magistrate failed to explain to you whether you understood the guilty plea and whether the facts read by the prosecution was understood by you before your conviction was entered.
      
8. On the 21 February 2008 as part of its written submissions in this appeal, the following additional grounds of appeal were submitted by your counsel:
   
   1. The learned magistrate erred in law and fact in not explaining to you, your rights under section 28(1)(d) of the Constitution before taking your guilty plea;
      
   2. The learned magistrate erred in law in convicting you due to a mistake
      
9. The respondent has also filed written responses to each of the grounds referred to above. I found those submissions most helpful indeed and the case authorities cited therein.
   

Appeal Grounds consolidated

10. From the above, the grounds of appeal may be consolidated to just two:
    
    1. The learned Magistrate erred in law in accepting the guilty plea without first explaining to you the nature and seriousness of the charge and that you understood it;
       
    2. The learned Magistrate erred in law and fact in not giving you an opportunity to carefully consider whether you want to be legally represented or not; a right you have under section 28(1)(d) of the Constitution.
       

Determination of Appeal

11. I observe that the appellant’s written submission on all the grounds alleges that an error of law was committed by the learned Magistrate. But there were no clear and direct reference to the principle of law in question and the basis on which the error alleged may have occurred. This is unfortunate because it meant that the court is left to infer from the submission what may be the issues of law being complained about.
    
12. For you first ground of appeal, you claim that the learned Magistrate should explain to you the nature of the charge you faced, the consequences that would flow if you were convicted, before your guilty plea was entered. Failure to do this would make the plea equivocal and therefore the conviction, and may be set aside, in the interest fairness and justice. There is no authority cited in support of this proposition.
    
13. It should be pointed out that section 206 (1) of the CPC requires only the substance of the charge to be stated to the accused by the court. A more stringent requirement of the kind proposed in your submission would be mistaken. Similar proposition were discussed by the Court of Appeal in DPP v Ram Sami Naidu FCA, Crim App. Case No: AAU 034 of 1984 and it found it unacceptable.
    
14. On the facts here, the court record showed that after the charge was read and explained, the appellant waived his legal right to be represented by counsel. His plea of guilty was entered after he waived his legal rights.
    
15. The Court of Appeal in Kuruka Bogiwalu & Ifereimi Nakauta v. The State [1998] FJCA 16(Crim App Case No: AAU 006/1996) had held that if it can be shown that the guilty plea given by an unrepresented accused, was tendered in a manner that is in any way equivocal or uncertain or that the accused entered the plea when he did not have a full understanding of the effect of the plea, it may be set aside. Whether a plea of guilty is effective and binding will be a question of fact to be determined by the appellate court ascertaining, from the record and from any other evidence tendered, what occurred at the time the plea was entered.
    
16. The appellant has not submitted any affidavit regarding the circumstances surrounding his decision to enter a guilty plea during the trial in the Magistrates Court. This court is left with what is in the Court Record to evaluate the appellant’s claim.
    
17. The court record reveals the following:
    
    1. Charge was read explained to you;
    2. You waived your legal right;
    3. You pleaded guilty
    4. Summary of facts was read out and you admitted it;
    5. In your mitigation admitted what you did was a mistake and that you were sorry for what happened;
    6. On 4 January 2008, when your counsel appeared for your sentence, the learned Magistrate, advised him you had been informed of his right to be legal counsel and that you waived it.
       
18. Similar factual circumstances was evaluated by my brother Mr Justice Winter in Joji Waqasaqa & Another v The State [2005] FJHC 115(HAA 0061/2004) he concluded that the guilty pea was unequivocal. In this case I find that the charges were read and explained to you and that you understood it.
    
19. I do not accept, your submission, that there is a duty on the learned Magistrate to explain to you the liable punishment the court may impose in law in the case if there was a conviction. All of these to take place before the guilty plea is accepted. This claim by your counsel is made without reference to any statutory authority or case law.
    
20. It should be noted that your mitigating factors support your earlier plea of guilt and also your admission of the summary of facts that was read to you in court. Taking all of these circumstances together is clear that the guilty plea was unequivocal. I find accordingly. This appeal ground is dismissed as having no merit.
    

Section 28(1)(d) Constitution requirements

21. The second ground advanced by you is that your right to be represented by legal counsel or legal aid, under section 28(1) (d) of the Constitution, was not afforded to you by the learned Magistrate. In support your counsel has referred to Epeli Duve v The State FJHC HAA 28 of 2002, where Madam Justice Shameem stated as follows:
    

‘ the right must be explained to them before the charges are read to them. A waiver of right will not be lightly implied and specific waiver must be recorded before the court can proceed to take pleas.’

22. I do agree with this statement. On the facts in this case, it appears that these requirements have been satisfied.
    
23. Section 28(1)(d) of the Constitution provides:
    

‘Every person charged with an offence has the right:

100. To defend himself or herself or to be represented at his or her own expense, by a legal practitioner of his or her own choice or, if the interest of justice so require, to be given the services of a legal practitioner under a scheme of legal aid’
     

24. Counsel for the appellant in their written submission filed in court on 11 January 2008, stated that the ‘learned Magistrate erred in law by relying that the appellant has waived his right to legal representation when he is under statutory duty to explain to the appellant that such a charge carries maximum of 5 years imprisonment and ought to seek legal advice or legal aid" [emphasis added].
    
25. In Suren Singh & others v The State [2000] FJHC 115 (HAA 0079/2000), Madam Justice Shameem held in discussing section 28(1)(d) of the Constitution, that the purpose of the right to choose to be represented is to ensure a fair trial, the custodian of the enforcement of that right must be the court. I agree.
    
26. I further agree that its is the court that must explain to the accused of his/her rights under section 28(1)(d) of the constitution before it can be waived.
    
27. Under section 28(1)(d) of the Constitution an accused person may:
    
    1. Defend the charge personally; or
    2. May instruct a counsel of choice; or
    3. May make an application to the Legal Aid Commission which will be considered in the interest of justice.
       
28. What may be the consequences of a failure to observe the rights of the accused? An accused person must be informed of these rights that he has and be given time to consider them before his plea is taken. It follows that failure to communicate these rights to the accused person may lead to a finding that the hearing was not fairly conducted and may be set aside in the interest of justice.
    
29. On the facts in this case, the records show under the date 4 January 2008, that Counsel for the Applicant appeared for the sentence for the first time. The learned Magistrate said to him after he announced that he was representing the appellant; ‘ I advised the him [Counsel] that the accused[appellant] was first asked in court on 31.12.2007 whether he needed legal representation. He said that he did not, the matter than proceeded.’ In this reference the learned magistrate has made clear that you were advised of your right to counsel before you waived it.
    
30. You have advanced nothing in your submission to inform this court that the waiver of the legal right in this instance was incompetent and therefore should be disregarded. I would go further and say the interest of justice in this case would support the learned Magistrates accepting the guilty plea as unequivocal because of what the appellant said in mitigation, which was an admission, when he said he was sorry it happen and that it was a mistake.
    
31. I therefore find that the appellant was informed of his legal rights under section 28(1)(d) of the Constitution and he waived them. This ground of appeal has no merit and is dismissed.
    
32. Before I conclude, I would commend the guidelines set out in Suren Singh & Others (supra) to all Magistrate to assist in mitigating the high incidence of appeals being grounded on claims of unfair procedure in the Magistrates Court.
    
33. In conclusion I find that there is no merit in any of the grounds submitted and I dismiss the appeal. I uphold the Magistrates Court decision.
    

Isikeli Mataitoga
JUDGE

At Suva
28 March 2008