Chand v State [2008] FJHC 9; HAC138.05 (18 January 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Appeal No : HAC 138 of 2005

BETWEEN:

DIP CHAND f/n Dhani Chand
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. S. Sharma for the Appellant
Mr. N. Nand for the State

Date of Hearing: Monday 10th December, 2007
Date of Judgment: Friday 18th January, 2008

JUDGMENT

Background

[1] On the 4th of July, 2005 the appellant appeared in person in the Rakiraki Magistrates’ Court on the following charges:

FIRST COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in December 2003 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely ASHIKA CHAND d/o KUSUM CHAND without her consent.

SECOND COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in January 2004 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely ASHIKA CHAND d/o KUSUM CHAND without her consent.

THIRD COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17.

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in June 2004 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely ASHIKA CHAND d/o KUSUM CHAND without her consent.

FOURTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in January 2005 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely ASHIKA CHAND d/o KUSUM CHAND without her consent.

FIFTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the year 2003 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SHIRLEEN NAND d/o ISHWAR NAND without her consent.

SIXTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the year 2003 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SHIRLEEN NAND d/o ISHWAR NAND without her consent.

SEVENTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the year 2004 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SHIRLEEN NAND d/o ISHWAR NAND without her consent.

EIGHTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the year 2004 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SHIRLEEN NAND d/o ISHWAR NAND without her consent.

NINETH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the month of July 2004 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SHIRLEEN NAND d/o ISHWAR NAND without her consent.

TENTH COUNT

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17

Particulars of Offence (b)

DIP CHAND s/o DHANI CHAND sometimes in the year 2001 at Rakiraki in the Western Division had unlawful carnal knowledge of a girl, namely SANGEETA DEVI SINGH d/o SURENDRA SINGH without her consent.

[2] The appellant elected to be tried by the Magistrates’ Court. The charges were put to him and he pleaded guilty to all of them. The charges related to three complainants. Counts one to four related to the first complainant. Counts five to nine related to the second complainant. Count ten related to the third complainant. On counts one to nine, he was sentenced to 7 years imprisonment respectively. On count ten, he was sentenced to 6 years imprisonment. Some sentences were made concurrent while some consecutive. The overall sentence was 20 years imprisonment.

[3] The appellant timely lodged an appeal to challenge his conviction and sentence on numerous grounds. Subsequently, his legal aid application was approved and he is now represented by the Legal Aid Commission. His counsel has filed the following amended grounds of appeal:

(1) THAT the Learned Trial Magistrate erred in law and in fact by relying on the summary of facts when it did not satisfy the elements of the offences charged and/or when the facts as presented could not in law have convicted the Appellant of the offences charged.

(2) THAT the Learned Trial Magistrate erred in law in failing to enter a conviction after the charges and the Summary of facts were admitted by the Appellant.

(3) THAT the Learned Trial Magistrate erred in law in remanding the Appellant in custody when he had no powers to do so without finding the Appellant guilty as charged and without convicting the Appellant as charged.

(4) THAT the Guilty Plea was equivocal in that:

• (a) The Learned Trial Magistrate failed to enquire whether the Appellant was pleading guilty due to any force, pressure or threat or on his own freewill since the offences charged were serious and that he was unrepresented.
  
• (b) The Learned Trial Magistrate erred in law in not making sure that the Appellant understood the truth of the charges and summary of facts in the language the Appellant understood.
  
• (c) The Learned Trial Magistrate failed and/or neglected to allow the Appellant any opportunity to seek legal advice considering the seriousness of the charges.
  

(5) THAT the Learned Trial Magistrate incorrectly relied on the Caution Interview of the Appellant when it was not tendered as an exhibit after the summary of facts were read out. Furthermore the Learned Trial Magistrate erred in Law in not allowing the Appellant any opportunity to challenge any of the evidence contained in the Caution Interview.

(6) THAT the Learned Trial Magistrate incorrectly assumed that the third victim had been medically examined when her Medical Report was not exhibited in Court.

(7) THAT the Learned Trial Magistrate incorrectly relied on the Medical Reports when the findings of the Medical Officer were inconclusive and vague.

(8) THAT the Learned Trial Magistrate erred in law when he relied on charges which were vague, uncertain, bad for duplicity and unjust.

(9) THAT the Appellant was prejudiced by lack of legal representation.

[4] In addition the appellant is seeking to adduce fresh evidence on appeal. The application is being opposed by the State. Both parties have filed affidavits. The evidence relates to allegations of assault, threat or undue pressure placed on the appellant by the police to plead guilty. With the consent of the Court, the parties have deferred the hearing of the application to adduce fresh evidence and the sentence appeal until the Court’s determination on the above grounds of appeal against conviction.

[5] I have received helpful written submissions from Mr Sharma for the appellant and Mr Nand for the State. I am grateful for their thorough and well researched submissions.

[6] Since this is an appeal against conviction arising from guilty pleas, I find it useful to set out what transpired in the Magistrates’ Court when the appellant first appeared to answer the charges against him.

"04.07.05

Prosecution: Tunidau K – DPP

Accused: Present.

Charges read, explained and understood.

Election: The accused, when given his option elected Magistrates’ Court Trial.

When further asked by the Court whether he needed legal aid assistance or a lawyer to represent him he silently said that he needed no legal assistance or lawyer to represent him.

Each count was separately read and explained to the accused.

Plea
Count 1	I plead guilty
Count 2	I plead guilty
Count 3	I plead guilty
Count 4	I plead guilty
Count 5	I plead guilty
Count 6	I plead guilty
Count 7	I plead guilty
Count 8	I plead guilty
Count 9	I plead guilty
Count 10	I plead guilty

Then Mr. Tunidau made application that the names of the three victims be suppressed.

First victim is Ashika Chand for Counts 1 – 4.

Second victim is Shirleen Nand for Counts 5 – 9.

Third victim is Sangeeta Devi for Count 10.

In view of sensitivity of the matter and the circumstances the names of all the three victims be suppressed.

Summary of the facts on each count were read out.

Count 1	Facts admitted
Count 2	Facts admitted
Count 3	Facts admitted
Count 4	Facts admitted
Count 5	Second victim
	Facts admitted
Count 6	Second victim
	Facts admitted
Count 7	Second victim
	Facts admitted
Count 8	Second victim
	Facts admitted
Count 9	Second victim
	Facts admitted
Count 10	Third victim
	Facts admitted

Prosecution want to tender interview statement – to be done in English – tendered medical report of 2 victims 01.07.05, birth certificate of Ashika Chand. History related by the patient is related. No force, no threat or promise. Caution interview given voluntarily. Prior to interview he was asked to see member of Parliament – Mr. George Shiu Raj. Birth certificate of the first victim produced.

Caution interview Exhibit 2 to be translated. Summary of facts exhibit 1, medical report exhibit 3 and 4. Birth certificate exhibit 5. 2 previous convictions admitted.

Mitigation

42 years of age of Naria, Rakiraki. A cane cutter, married – separated with two children – 12 years and younger one is 10 years, staying with their mother. Now staying with mother, ask for leniency, forgiveness. I have pleaded guilty. I have made a mistake. The victims are all my neighbours. I know them well.

Court

The accused be remanded in custody to allow the Court to read through all the facts and study cases related to these offences before sentencing. Mr. Tunidau to assist the Court in supplying recent case laws.

Sentencing : 15.07.2005.

05.07.2005

Mr. Tunidau appeared in Chamber this afternoon asking for Formal Court Order that the accused be placed in custody of the Police to facilitate ongoing investigation in the three girls missing. Now new information that accused has made confession in regards to the new allegation of Murder.

Ruling

In view of this application and the circumstances the Police are now facing it is appropriate that the order be granted to allow Police to continue with their investigation in view of the confession made.

In view of this the accused be remanded under Police custody from today until further order.

15.07.2005
Prosecution	Tunidau
Accused	Present

Sentence read out."

Consideration of Grounds

[7] It is well settled law that an appeal against conviction arising from guilty plea lies in limited circumstances. For instance, an appeal may be entertained if the appellant claims the plea was a nullity, or the offence was not known in law, or where the proceedings were otherwise invalid (Sikeli Koro v The State, Criminal Appeal No. HAA 0048 of 2002L).

The Charges

[8] The starting point is the charges. The appellant submits that the charges were not drafted with reasonable certainty in regards to the dates of allegations, and therefore, were objectionable.

[9] The charges were drafted in accordance with the "representative charge" procedure approved by Shameem J in Sikeli Koro v The State (supra). If this matter had proceeded to trial, the appellant would have been entitled to further information about the dates. Because the appellant has pleaded guilty, the situation is not the same. I find the appellant was not prejudiced by the lack of information on the specific dates of the allegations because the admitted facts and the caution interview disclosed multiple offending between 2001 and 2005. This ground of appeal fails.

The Facts

[10] The appellant submits that the admitted facts did not disclose the essential elements of rape, namely, the act of carnal knowledge and lack of consent by the complainants.

[11] The offence of rape requires proof of unlawful carnal knowledge, that is, unlawful sexual intercourse with the complainant. The physical act of intercourse must be proved, that is that the accused’s penis penetrated the complainant’s vagina. The slightest penetration is sufficient.

[12] The unlawful sexual intercourse must be accompanied by lack of consent by the complainant. This includes where intercourse is consented to by the complainant but who only consents because she is forced to do so or is threatened or intimidated to submit to the act, for fear of bodily injury.

[13] Upon pleas of guilty, the prosecution presented the facts in a written form. After stating the circumstances of offending on each count, the prosecution stated:

"On all counts 1-10, the victims did not consent to sexual intercourse with the Accused and on every occasion, the Accused penis penetrated the victims’ vagina during the act of sexual intercourse."

[14] Counsel for the appellant submits that the above passage was not part of the admitted facts, but was part of the submissions by the prosecution. I disagree. The statement was clearly part of the written summary of facts presented by the prosecution, to which the appellant agreed when it was read to him.

[15] I find that the admitted facts clearly disclosed the offence of rape as charged in counts one to ten. The facts were unambiguous. This ground of appeal fails.

Failure to Convict

[16] After accepting the pleas of guilty from the appellant and the facts from the prosecution, the learned Magistrate proceeded to hear mitigation from the appellant. The appellant submits that the learned Magistrate should have entered the conviction before proceeding to hear the mitigation from the appellant. I cannot find any support in law for this proposition.

[17] The requirement to record a conviction is contained in section 206(2) of the Criminal Procedure Code. Section 206(2) states:

"If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient course to the contrary."

[18] A finding of guilt on the record is sufficient to comply with section 206(2) of the Criminal Procedure Code and there is no requirement that the word "convict" or "conviction" be used (Epeli Delai v State, Criminal Appeal No. HAA 0022 of 1995; Baleitamavua v The State, Criminal Appeal No. HAA 107 of 2007).

[19] I accept the State’s submissions that the learned Magistrate took a cautious approach because the appellant was unrepresented. By recording the conviction after the mitigation, the learned Magistrate ensured that there was nothing in the mitigating statements of the appellant that indicated he had a valid defence to the charges.

[20] I find the procedure adopted by the learned Magistrate was correct in law and complied with section 206(2) of the Criminal Procedure Code. This ground of appeal fails.

Power to Remand

[21] After the appellant had mitigated, he was remanded in custody for sentencing. The appellant complains that the learned Magistrate had no power to remand him in custody for sentencing. The issue is a moot point. I deal with it briefly. The appellant was arrested and charged by the police. When the appellant appeared in court he was already in the police custody. The police had no power to release the appellant on bail because he was charged with serious offences (see, s. 8(2) of the Bail Act). The charges were timely filed and the appellant was timely brought to court to answer the charges. The appellant pleaded guilty to the charges and the learned Magistrate did not grant bail but remanded him in custody for eleven days before he sentenced him. The learned Magistrate had the discretion to grant or not to grant bail (see, s. 12(a) of the Bail Act). The discretion was exercised not in favour of the appellant. This ground of appeal fails.

[22] However, I make an observation. As a matter of good practice, sentencing should not be delayed upon finding of guilt, unless there are difficult issues to be addressed, which may require legal research or written submissions from counsel. The sentencing was delayed for the learned Magistrate to consider the facts and the State to file relevant authorities. The delay of eleven days was not unreasonable in the circumstances of this case.

[23] Under this ground of appeal, the appellant also complains about the prosecution appearing in the learned Magistrate’s Chamber and obtaining an order for the police to take the appellant in their custody without giving the appellant his due process right to be heard. I deal with this issue below.

Appellant’s Guilty Pleas

[24] When an unrepresented accused enters plea of guilty, the courts are required that the trial court ascertain from the accused’s own statements personally in open court that he or she is voluntarily making a plea of guilty and understands the nature of the charge and the general effect of the plea, before such plea is accepted (see, Vilikesa Balecala v The State, Criminal Appeal No.: HAA0062 of 1996; Singh v The State, Criminal Appeal No.079 of 2000; Nadan & McCoskar v The State Criminal Appeal Case Nos. HAA0085 & 86 of 2005)). I find that the American Bar Association’s Standards for Criminal Justice (2d ed., 1986) provide a useful list of matters that should be covered by the court, with the accused, to assure that he or she fully understands the meaning and consequences of a guilty plea. The Standards have been extensively cited in United States Courts and have attracted international attention.

[25] Standard 14-1.4, entitled "Defendant to be advised", states:

"(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:

(i) the nature and elements of the offense to which the plea is offered;

(ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration;

(iii) that, if the defendant has been previously convicted of a offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment;

(iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant’s behalf, and to have compulsory process in securing their attendance; and

(v) that by pleading guilty the defendant waives the right to object to the sufficiency of the charging papers to state an offense and to evidence allegedly obtained in violation of constitutional rights, except to the extent that motions concerning such matters may already have been made and ruled upon, or unless the right of appeal on such issues is reserved.

(b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences.

(c) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel."

[26] Of course, not all rights mentioned in the Standards are relevant to Fiji, for instance, in Fiji there is no right to a trial by jury. While the aspirations set out in the Standards cannot be expected to be attained except in quite sophisticated courts such as in the United States, they demonstrate the variety of concerns a court should address to assure that a plea of guilty is knowingly made and is based on an adequate understanding of the rights and consequences involved.

[27] In 1997, Fiji adopted a Constitution that sets out the aspirations of the people. The Constitution gives every accused person the following Bill of Rights:

Rights of charged person

28. – (1) Every person charged with an offence has the right:

(a) to be presumed innocent until proven guilty according to law;

(b) to be given details in legible writing, in a language that he or she understands, of the nature of and reasons for the charge;

(c) to be given adequate time and facilities to prepare a defence, including, if he or she so requests, a right of access to witness statements;

(d) to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice, or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid;
(e) not to have unlawfully obtained evidence adduced against him or her unless the interests of justice require it to be admitted;

(f) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;

(g) to be given, on payment of a reasonable fee prescribed by law, a copy of the record of proceedings of the court and of the decision of the court within a reasonable time;

(h) not to have the trial take place in his or her absence unless:

(i) the court is satisfied that the person has been served with a summons or other process requiring his or her attendance and has chosen not to attend; or

(ii) his or her conduct in the proceedings is such that the continuation of the proceedings in his or her presence is impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence;

(j) not to be found guilty in respect of an act or omission unless the act or omission constituted an offence at the time it occurred, and not to be sentenced to a more severe punishment than was applicable when the offence was committed;

(k) not to be tried again for an offence of which he or she has previously been convicted or acquitted; and

(l) if found guilty, to appeal to a higher court.

Access to courts or tribunals

29.- (1) Every person charged with an offence has the right to a fair trial before a court of law.

(2) ...
(3) Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time.
(4) The hearings of courts (other than military courts) and tribunals established by law must be open to the public.
(5) ...
(6) Every person charged with an offence, every party to civil proceedings and every witness in criminal or civil proceedings has the right to give evidence and to be questioned in a language that he or she understands.
(7) Every person charged with an offence and every party to civil proceedings has the right to follow the proceedings in a language that he or she understands.
(8) To give effect to the rights referred to in subsections (6) and (7), the court or tribunal concerned must, when the interests of justice so require, provide, without cost to the person concerned, the services of an interpreter or of a person competent in sign language.
(9) ...".

[28] The constitutional right to legal representation, albeit not absolute, embodies a realistic recognition of the obvious truth that the average accused does not have the professional legal skill to protect himself or herself when brought before a tribunal with power to take his or her liberty. The accused’s right to legal representation is particularly important in an adversary system of criminal justice. The State hires qualified or trained lawyers to prosecute. The accused persons who have money hire best lawyers to defend. The poor accused persons are left to defend themselves. That which is simple, orderly, and necessary to the lawyer – to the untrained laymen – may appear intricate, complex, and mysterious.

[29] A lawyer provides valuable assistance to an accused in achieving the necessary levels of knowledge and understanding of the constitutional rights and the legal process. The court must assure that any waiver of the right to legal representation is knowingly and affirmatively made. The waiver must appear on court record and not to be assumed from a silent record. For a waiver to be effective, the prosecution must show that the accused was competent to make such a waiver and the accused was completely aware of the right being waived. In Johnson v Zerbst, 304 U.S the United States Supreme Court observed that "the determination of whether there has been an intelligent waiver or right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused".

[30] The principle in Johnson v Zerbst was adopted by Shameem J in Suren Singh & Ors v The State (supra), which considered the constitutional right to legal representation in quite detail. To ensure that the convictions arising from guilty pleas of unrepresented accused persons are constitutionally safe, Shameem J outlined the following guideline for the Magistrates to follow 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 have 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?

[31] Shameem J’s guideline was not strictly followed by the learned Magistrate. When the accused was advised of his right to legal representation, according to the record, he silently waived it. Why was the accused silently waiving his constitutional right to legal representation? No one knows. No further inquiry was made to ensure whether the accused understood his constitutional right to legal representation.

[32] There is no doubt the appellant is a poor man. He earned a living by cutting cane and fishing. He gave his police interview in Hindi language. In the interview, he scribbled his signature. He is also not a very intelligent man who would easily understand his legal rights and the legal process. His police interview commenced at 1. 15 pm on the 2nd of July 2005. He must have been arrested before 1.15 pm. The interview concluded at 6.56 pm on the same day. He was brought to court on the 4th of July 2007, by which time he had been in police custody for two days, to face charges which looked like he was a serial rapist. The appellant could have been frightened and disoriented by the whole experience. I find that the appellant did not competently waive his right to legal representation. Under these circumstances, the learned Magistrate should have asked the unrepresented appellant whether he was pleading guilty voluntarily or whether he has been pressured or induced to do so. This ground of appeal succeeds.

The Caution Interview

[33] To ensure the appellant’s pleas of guilty were equivocal the prosecution tendered the caution interview of the appellant and the medical reports of the first and second complainants. The practice of tendering the caution interview, and the medical report of complainant, when the accused is unrepresented is proper (see, State v Isaia Saukuru Lautoka High Court HAA013 of 200L; Ananaia Nawaqa & Ors v The State Lautoka High Court HBM0014.2000L). The practice allows the court to examine the caution interview and the medical report so that the court is satisfied that the unrepresented accused fully comprehends what the plea of guilty involves. It is only after the court is so satisfied the unrepresented accused should be convicted.

[34] The record states that the caution interview was voluntarily made and there have been no force, threat or promise. It appears this part of the record was the prosecution’s submissions and not an outcome of an independent inquiry made by learned Magistrate from the appellant. If the caution interview of an unrepresented accused contains incriminating statements and the learned Magistrate wants to rely on it to make a finding of guilt, then the accused’s consent is necessary. An accused cannot be convicted on a confession if that confession was involuntarily obtained. The learned Magistrate should have ascertained from the appellant whether he had voluntarily made the statements in the caution interview rather than relying on the prosecution’s submissions that the caution interview was given voluntarily. This ground of appeal of succeeds.

[35] There is another matter of concern. Only the original caution interview which was in Hindi language was tendered in court. The prosecution informed the court that the interview has to be translated. The interview was translated into English language and became part of the record. The translation was done by the investigating police officer. How the translated interview became part of the record is not known. I read Hindi. After reading the Hindi version, I found that the English translated version is not entirely correct. For instance:

English version

Q115. Then?

Ans. Shirleen and myself got dressed up and I told Shirleen not to tell anyone. Otherwise I will kill her.

Hindi version

Ans. Shirleen and myself got dressed up and I told Shirleen not to tell anyone.

English version

Q.135 When you had sex with Sangeeta then what happened?

Ans. I gave warning to Sangeeta not to tell anyone or else I will kill her.

Hindi version

Ans. I gave warning to Sangeeta.

[36] The addition of prejudicial information in the translation was improper and unfair to the appellant. The prejudicial translation was not a mere oversight or a typing error. If the appellant had legal representation, counsel surely would have taken objection to the highly prejudicial information being considered by the learned Magistrate. Regrettably, the appellant was unrepresented.

Hearing in Chamber

[37] The learned Magistrate after receiving the summary of facts and other documents from the prosecution adjourned the case to consider them. He did not enter a conviction until the day of sentence, that is, 15th of July 2005. Meanwhile, on the 5 of July 2005, the counsel for State appeared in the learned Magistrate’s Chamber ex parte to seek an order for the police to take the appellant into their custody to facilitate investigations in relation to three missing girls. Counsel also disclosed highly prejudicial information about the appellant to the learned Magistrate, namely, the appellant has confessed to murder.

[38] It is a constitutional requirement that justice must be administered in open court (see. s.29(4) of the Constitution).

[39] Section 61 of the Criminal Procedure Code provides that the Courts are to be open to the public. In Turner (1970) 54 Cr App R 352 the then Chief Justice stated:

"It is of course imperative that so far as possible justice must be administered in open court."

[40] In my opinion, it was unwise for the learned Magistrate to entertain the counsel for State in Chamber. The learned Magistrate was still considering whether or not to enter conviction against the appellant when the prosecution disclosed further prejudicial material regarding him. What effect the prejudicial information had on the learned Magistrate’s decision to convict the appellant is not possible to ascertain. However, he imposed a total sentence of 20 years imprisonment on a plea of guilty, which may be taken as indication that the prejudicial information had some effect on the learned Magistrate’s mind. The receiving of prejudicial information about an unrepresented accused in his absence and behind the closed doors by the learned Magistrate must give rise to a possibility of substantial injustice.

Medical Reports

[41] In his sentence remarks, the learned Magistrate said:

"Medical reports of the victims were tendered in Court and they related the same story of what you did to them to the Medical Officer."

[42] Factually the above remark was not correct. Only the first and second complainants’ medical reports were tendered in court. There was no medical report of the third complainant. The learned Magistrate’s finding that the victims’ medical reports where consistent with the summary of facts was erroneous.

[43] The summary of facts stated that the rapes on counts two, three and four took place at the accused’s home. According to the medical report of the first complainant, she told the doctor that the rapes took place at her home.

[44] The summary of facts stated that the second complainant was raped on five occasions. The first four rapes took place at Malake Island between 2003 and 2004, and the last rape took place at the complainant’s home in June 2005. According to the history related to the doctor by the second complainant, the last rape took place in January 2005 at Malake Island.

[45] According to the summary of facts, the third complainant was raped at Malake Island, while the appellant in his caution interview said that the incident took place at the seashore of the mainland.

[46] I accept that at times a person can be confused about the date of a particular incident, but to be confused about the place of a most recent rape is not logical. These inconsistencies in facts should have triggered the learned Magistrate to question the appellant whether he was pleading guilty voluntarily and without any pressure from anyone. If he was represented, counsel would have highlighted the inconsistencies and objected to the flaws in the proceedings in the Magistrates’ Court. In my view the proceedings did not comply with the constitutional requirement for a fair trial. I find that the appellant was prejudiced by lack of legal representation. This ground of appeal succeeds.

[47] I find the proceedings in the Magistrates’ Court have miscarried and the convictions arising from the pleas of guilty are unsafe. The appeal against conviction succeeds on grounds 4, 5, 6, and 8.

Result

[48] Appeal against conviction allowed. Conviction set aside and the case is remitted to the Magistrates’ Court for a new trial before another Magistrate. Name suppression order for the complainants remains.

Daniel Goundar
JUDGE

At Lautoka
Friday 18th January, 2008

Solicitors:
Office of the Legal Aid Commission, Lautoka for the Appellant
Office of the Director of Public Prosecutions, Lautoka for the State