Singh v State [2000] FJLawRp 59; [2000] 2 FLR 127 (26 October 2000)

[2000] 2 FLR 127

IN THE HIGH COURT OF FIJI

SUREN SINGH, MUNNA LAL,
LUA TOMA, TASI TOMA,
LAVIN YOGESH LAL
AND
VILISONI SENIKAU

v

STATE

High Court Criminal Jurisdiction
Shameem J
26 October 2000
HAA0079/00S

Whether plea of guilty unequivocal where accused not informed of right to counsel - Effect of breach of duty to inform accused's of right to counsel - Guideline for Magistrates before taking a plea - Sentencing principles Constitution section 27(1)(c).

The appellants appealed against severity of their sentence on the grounds that one of them was coerced by the police to plead guilty and that the Magistrate had failed to inform the rest of them of their Constitutional right to counsel prior to taking their guilty pleas.

Held - (1) Proceedings were conducted fairly and pleas were unequivocal despite breach of section 28(1) (d) of Constitution;

(2) The 1997 Constitution continued to apply until judicial determination to the contrary;

(3) As a general rule, leniency is shown to first offenders, young offenders and offenders who plead guilty and express remorse.

Pleas entered were unequivocal and convictions are safe. 2½ years imprisonment substituted for 2 year suspended sentence for all appellants.

Cases referred to in judgment

foll Brennan (1941) 28 Cr. App. R. 41
cons Vilikesa Balecala v State HAA0062/96
appl B.R. Kwon v Suva City Council (2000) 46 FLR 66
foll R v Mallinson [1992] NZCA 28; (1992) 8 CR NZ 483
foll R v Taylor (1993) 1 NZLR 647
dist State v Mool Chand Lal [1999] HAC 3/99 Lbsa 22 November, 1999
cons R v Brydges 1990 CanLII 123 (SCC); (1990) 1 SCR 190
ref Hunter v Southern Inc (1984) 2 SCR 145
dist Joseva Lui, Inoke Mata & Ilisoni Volitikoro v State AAU0005/97S
appl Mitchell v Queen [1999] UKPC 28; (1999) 1 WLR 1679
cons Johnson v Zerbst [1938] USSC 145; (1983) 304 US 458
cons Von Moltke v Gillies [1948] USSC 10; (1948) 332 U.S 708
cons Korponay v Attorney-General of Canada (1982) 1 SCR 41

1^st Appellant in person
Tamara Jayatilleke for 2^nd, 3^rd and 5^th appellants
4^th Appellant in person
Josaia Waqaivolavola for respondent

26 October, 2000.

JUDGMENT

Shameem J.

The Appellants were on the 31^st of January 2000, convicted of the following offence:

Statement of Offence

Robbery with violence: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

SUREND SINGH f/n MUNNA LAL, LUA TOMA, TASI TOMA, LAVIN YOGESH LAL f/n SUREND SINGH and VILISONI SENIKAU, on the 30^th day of January, 2000 at Wainibuku in the Central Division, robbed ASHOK CHAND f/n SHIRI CHAND of one Taxi meter $700.00, a wrist watch $60.00, cash $35.00, one spare tyre $50.00 and one car key $2.50 to the total value of $847.50 and at such time of such robbery did use personal violence to the said ASHOK CHAND f/n SHIRI CHAND.

On their pleas of guilty they were convicted and sentenced to two and a half years imprisonment each.

They now appeal against severity of sentence. The 2nd, 3rd and 5th Appellants also appeal on the ground that the Learned Trial Magistrate failed to advise them of their constitutional right to a lawyer prior to taking their pleas. All Appellants express remorse. The 2nd, 3rd and 5th Appellants were released on bail pending appeal 2.2 months after sentence was passed. The 1st and 5th Appellants have served 9 months of their sentence.

The facts of the case as outlined by the prosecution in the Magistrates Court, are that the victim, a 21 year old taxi driver was well-known to the Appellants. On 30th January 2000, the 1st and 2nd Appellants hired his taxi from Suva to Wainibuku road. They asked him to stop at the Wainibuku Junction. The 2nd Appellant called the 3rd, 4th and 5th Appellants to the taxi. The 3rd Appellant then covered the face of the victim with cloth. The 1st Appellant held his neck and pulled out the taxi meter. The 3rd Appellant grabbed the victim's wrist watch while the 4th Appellant stole cash of $20.00 from his pocket. The 2nd Appellant stole the key of the taxi and a spare tyre. "The 5th Appellant acted as the watchman. The Appellants then fled the scene. The victim walked to the Wainibuku Police Post for assistance and reported the matter, identifying the 1st Appellant, whom he knew. The Appellants were arrested in the early hours of the same day and all property was recovered except for $5.00.

All Appellants were brought to the Nausori Magistrates Court on 31^st January 2000. The court record then reads as follows:

"Prosecution: PC Subhan Ali

Accused 1-5 Present (in custody of police)

Charge read explained and understood: Yes (all accuseds)

Election: 1-5 Mag. Ct. trial.

Pleas: 1-5 Guilty."

The Magistrate did not ask the Appellants if they wanted to be represented by counsel. Nor did the Appellants request such representation.

The Plea

All Appellants pleaded guilty, Section 309(1) of the Criminal Procedure Code provides:

"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates court, except as to the extent or legality of sentence."

Of course, the issue is not as simple as section 309 professes to make it. The appellate court, may consider the plea to consider whether it was an unequivocal plea of guilty. If for instance, there is evidence of improper pressure on the accused to plead guilty, that plea, the conviction and sentence can be set aside on appeal, and/or sent back to the Magistrates court for re-trial on a plea of not guilty (Brennan OR (1941) 28 Cr. App. R. 41).

When an accused person is unrepresented, the court must be sure that the plea has been entered with a full and understanding mind. If the record does not reflect such an understanding, this will lead to the entire proceedings being declared a nullity. In Vilikesa Balecala -v- State Crim. App. No. HAA0062/96, Townsley J found that three accused persons were brought into court on a Sunday, for a special court sitting. The summary of facts failed to disclose all ingredients of the offence of Attempted Rape. The Magistrate did not ask if the accused were pleading guilty voluntarily. As a guideline to Magistrates, Townsley J said that all unrepresented accused persons offering to plead guilty should be asked if anyone had induced them to plead guilty. Townsley J found that no real unequivocal plea of guilty was entered, and he quashed both conviction and sentence.

The 1st Appellant in this case, says that he was influenced by police pressure to plead guilty. The other Appellants say that they were not told by the Magistrate that they had a constitutional right to counsel.

Counsel for the 2nd, 3rd and 5th Appellants submits that it was the Learned Magistrate's duty to firstly check whether there had been any improper pressure to plead guilty, and secondly to inform the Appellants of the right to counsel. She says that the effect of breach of that duty, was to nullify the pleas, and therefore the entire proceedings.

The Constitution which, as I held in B.R. Kwon -v- Suva City Council (2000) 46 FLR 66 continues to apply to all criminal proceedings in the absence of any judicial pronouncement to the contrary, undoubtedly gives to an accused person the right to seek legal advice whilst in police custody, and when a charge has been laid.

Section 27(1) of the Constitution provides:

"Every person who is arrested or detained has the right .......

(c) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme of legal aid."

There is ample authority, overseas and in Fiji as to the nature of this right. Section 27(1)(c) places a mandatory duty on the police to inform the suspect in a language he/she understands of the right to counsel, at a time when it is meaningful to that suspect (see R v. Mallinson [1992] NZCA 28; (1992) 8 CR NZ 483) and this right includes the right to apply for legal aid. The police must also inform the suspect of the availability of counsel (see R v. Taylor (1993) 1 NZLR 647).

In State v. Mool Chand Lal (Crim. Case 3/99 Labasa) the police failed to tell the accused of his rights under section 27(1)(c). The Chief Justice ruled the resulting confession admissible on the ground that the accused had been eager to confess and had not been unfairly treated. However he held that there is now no doubt that the failure by the police to inform the suspect of all features of this right, could result in a judicial decision to exclude otherwise admissible evidence. All the authorities state that the only way to give effect to a right to counsel, is to place a duty on the police to inform the suspect of the existence, scope and effect of the right to counsel. It is not enough that the right exists.

In R v. Brydges 1990 CanLII 123 (SCC); (1990) 1 SCR 190, the Canadian Supreme Court said of a comparable provision in the Canadian Constitution as follows (at page 202):

"This court has on numerous occasions stated that the proper approach to interpreting the meaning of the rights and freedoms guaranteed by the Charter is to adopt a purposive analysis: Hunter v. Southern Inc (1984) 2 SCR 145 ...... this court has made clear that the right to counsel is .... aimed at "fostering the principles of adjudicative fairness" one of which is "the concern for fair treatment of an accused person"."

Of course the right under section 27(1)(c) differs somewhat from the right under section 28(1)(d) of the Constitution. The section 27 right includes a right, inter alia, to be informed of the right to counsel. Section 28(1) is less specific. Section 28(1)(d) provides:

"Every person charged with an offence has the right ...... 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."

State Counsel submits that there is no duty on the court or on anyone else to inform the person charged of this right. He submits that there are other rights in section 28 which are never communicated formally to the suspect such as the right not to have unlawfully obtained evidence used against him/her. He says that it is up to the accused to tell the court that he wants counsel. There is some force in his submission. Section 28(1)(1) of the Constitution gives a person convicted the right "to appeal to a higher court." In Joseva Lui, Inoke Mata & Ilisoni Volitikoro -v- The State Crim. App. AAU0005/97S the Court of Appeal held that a Judge of the High Court was under no obligation to inform an accused person of a right of appeal against sentence. However, the court did not refer to the right to be told of a right of appeal against conviction, nor was there any discussion on the significance of a constitutional right of appeal under section 28.

Indeed Joseva Lui was decided before the 1997 Constitution came into effect (although a similar provision existed in the 1990 Constitution).

Taking a purposive approach, therefore, to the right to counsel under the Constitution, the suspect must be told of that right by the police on arrest. In many cases, arrest and charge occur simultaneously under the Judges Rules, so that the purpose of the provision would be satisfied if the right were explained once. However, there are some suspects who may be charged by the issuing of a summons in the Magistrates Court, and who therefore will not have been previously told, under section 27, of the right to consult with a lawyer. Furthermore the right to consult with a lawyer on arrest or detention, is different from the right to be represented by counsel after charge. The purpose of section 27(1) (c) is to "dispel the pressure inherent in custodial interrogation" (The New Zealand Bill of Rights Act 1990 and the Right to Counsel Marc Corlett AULR). The purpose of section 28(1)(d) is to ensure a fair trial. A fair trial includes the right of the accused to choose to be legally represented.

The Privy Council in Mitchell v. The Queen [1999] UKPC 28; (1999) 1 WLR 1679 said that when counsel withdrew in the middle of a murder trial in Jamaica, the judge should have adjourned to allow the accused to seek different counsel, and that failure to do so constituted a breach of the accused's constitutional right to be represented. The conviction was quashed. Section 20(6)(c) of the Jamaican Constitution is identical to section 28(1)(d) of the Fiji Constitution. The question asked by the Privy Council was whether the justice of the case required the judge to ensure that the defendant was represented.

The courts in the United States have expressed the view that the right to representation "imposes the serious and weighty responsibility upon the trial judge of determining whether there was an intelligent and competent waive by the accused" (Johnson v. Zerbst [1938] USSC 145; (1983) 304 U.S 458) Von Moltke v. Gillies [1948] USSC 10; (1948) 332 U.S 708, 723).

If therefore, 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. Furthermore, in cases where persons are charged in court by summons rather than police arrest, the only occasion where such a right to representation might be communicated to them, would be when they appear in court. If they are not informed of this right by the Magistrate, they cannot be assumed to have waived it.

Although most authorities on the waiver of the right to counsel are in respect of rights comparable to the Fiji section 27(1)(c) which specifically includes a right to be informed, the principle of waiver has some significance to the concept of the right to be represented during trial. In Korponay v. Attorney-General of Canada (1982) 1 SCR 41 the Supreme Court of Canada said that any waiver of such a right "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights" (original emphasis) per Lamer CJ p.202.

Section 29(1)(d) contains a number of options for charged persons. Firstly they may defend themselves. Secondly they may instruct counsel of their own choice. Thirdly they may make an application for legal aid which will be considered in the interests of justice.

For the accused to make an informed choice, he/she must be told of these rights. And, because the failure to communicate these rights, and the absence of proper representation may lead to a finding that a hearing was not fairly conducted, the person responsible for communicating these rights is the Magistrate before whom the accused first appears. Finally, for the right to be communicated at the most meaningful time, it must be explained before the plea is taken.

For these reasons, I find that the Learned Magistrate should have explained to the appellants the three-pronged right under section 28(1)(d) of the Constitution before the plea was put to them.

What is the effect of non-compliance? In each case, regard must be had to the nature of the proceedings. In a serious case such as this one, the record must be examined for evidence of an unequivocal plea, and a summary of facts which outlines all ingredients of the offence in a manner which lay persons who may not be well-educated and who have not received legal advice, will understand. I find that on this record, each Appellant was asked if he understood the charge. The facts are clear to understand, and establish all ingredients of the offence.

Mitigation was offered by each Appellant and evidently discount was given for the relatively small amount stolen and for the guilty pleas. The record is a model of clarity and fairness despite the failure to ask the Appellants whether they had been forced to plead guilty and to inform them of their right to counsel. I find therefore on the facts of this case, and on the record of the proceedings that the hearing was conducted fairly despite a breach of section 28(1)(d), and of Townsley J's guideline in Vilikesa Balecala (supra).

Furthermore, I find that the pleas entered were unequivocal and that the convictions are therefore safe. The appeal against conviction for all Appellants, is therefore dismissed.

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

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.

Do you wish to instruct your own lawyer?

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:

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 numbers of appeals filed on the grounds of unfair procedure.

Sentence

All Appellants appeal against severity of sentence. Counsel for the 2nd, 3rd and 5th Appellants submitted that given the lack of physical injury inflicted on the victim, the small value involved in the robbery and the extreme youth of the Appellants, non-custodial sentences would have been sufficient custodial sentence.

State Counsel pointed out the seriousness of the offence, the fact that the Appellants knew the victim, and the normal tariff of 4 to 9 years for robbery with violence offences. However, he agreed that the Appellants had expressed remorse and that a reduction of their sentences might now be justified.

Robbery with violence is indeed a serious and prevalent offence. Increasingly, offences are committed with the use of weapons such as firearms. Increasingly banks and large shops are targeted for the theft of large sums of money. In many such cases, the offences are committed by a gang of masked men who have planned the robberies in advance. In such cases, the courts should not hesitate to impose heavy custodial sentences to mark the disapproval of society towards such crimes.

However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1^st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life.

In all the circumstances I consider that a suspended sentence was justified for all appellants. The sentence of 2½ years imprisonment is quashed for all Appellants. A sentence of 2 years imprisonment is substituted, suspended for two years.

Conviction confirmed, Sentence of 2 and a half years quashed and substituted with suspended two year sentence.

Mereseini R Vuniwaqa