Nawaqa v State [2001] FJLawRp 25; [2001] 1 FLR 123 (15 March 2001)

ANANAIA NAWAQA & 7 ORS. v STATE

High Court Miscellaneous Application

5 January, 22 February, 15 March 2001

HAM 0014/00L

Rape – 8 Appellants pleaded guilty – evidence - police statements and medical report tendered showed voluntariness, Complainant said to be raped by 6 men she knew – which 6 of 8 men alleged to have committed rape – Penal Code s149
Procedure - whether magistrate's acceptance of facts as put by the prosecutor without reading interview notes and charge statements to ascertain correctness of each accused's guilty plea a miscarriage of justice – trial de novo - Criminal Procedure Code ss310(2)(d), 311(8), 314(d), 319(1)

On their guilty plea, the 8 unrepresented Accused were sentenced in the Magistrates' Court to 5 years imprisonment to a joint charge of gang rape. The tendered medical report recorded the Complainant's interview by a medical practitioner that she was held down and raped by 6 men who she knew. All but D3 pleaded guilty. The Appellants sought a chance for traditional reconciliation and an offer that one of them could marry the complainant. On appeal, the Court found that an offer of marriage was in conflict with an awareness of having committed an act of rape, and was more consistent with an awareness of moral wrongdoing. The Court found that the prosecution had put incorrect facts to the Magistrate, who proceeded to record a conviction without perusing the interview notes and charge statements, which were at variance with the guilty pleas. The magistrate did not ascertain what was admitted by each accused. The appellate Court ordered a re-hearing before a different magistrate.

Held-(1) When deciding whether he could safely enter a conviction to a serious charge of rape, after examining each statement and medical report, a magistrate where appropriate could raise with each Appellant who had provided an exculpatory explanation whether each still persisted with that line of defence. A conviction can be safely entered once a magistrate feels nothing has been disclosed to throw doubt on the correctness of the plea of guilty.

(2) Where a magistrate has not ascertained with certainty on a plea of guilty what is admitted by an accused, such omission amounts to a lack of vigilance sufficient to render the proceedings a nullity. The proceedings suffered a miscarriage of justice when the incorrect facts were put to the Magistrate who did not peruse the interview statements.

DPP v Jolame Pita 20 FLR 5 appl.

Obiter dicta –(1) remarks on how deputy registrar of the High Court should supply a copy of the court record to the Respondent or his solicitor.

(2) The safe and sound practice of handing to the magistrate unrepresented accused's statements to police on a guilty plea, as done in this case, was correct and should continue.

(3) Magistrates' obligation of assisting unrepresented accused affirmed.

Michael Iro v R (1966) 12 FLR 104 appl.

Convictions and sentences quashed, order a trial de novo before a different Magistrate. Each Appellant bailed (with conditions).

[Note: cons in Jone Koro Sekinabou v State [2001] HAA 0013/01 20 April 2001; appl in Timoci Kurivola & Paula Kunauwa v State (2001) HAA052/00L 7 August 2001]

Other cases referred to in Judgment

foll State v Isaia Saukova [2000] HAA0013/00L Judgment 6 July 2000
appl R v Blandford Justices, ex parte G (an infant) [1966] 1 All ER 1021
cons Kuruka Bogiwalu & Anor v State [1998] AAU0006/96S 15 May 1998
ref Rex v Golathan 11 Cr.App.R. 79
ref R v Vent (1935) 25 Cr.App.R. 55
ref R v Griffiths (1932) 23 Cr.App.R. 153
foll R v Ingleson [1915] 1 KB 512
dist DPP v Ram Sami Naidu [1984] AAU 34/84 31 October 1984
dist Rupeni Vauvau & 3 Ors v State [1998] HAA 00014/97L 24 April 1998
cons Navitalai Gukisuva v R Cr. App 4/78S
appr R v Durham Quarter Sessions ex parte Virgo [1952] 1 All ER 466 at 469
cons S. (An infant) v Recorder of Manchester [1971] AC 481
cons McNally (1955) 38 Cr.App.R. 90 at 91
ref Campbell, ex parte Hoy [1953] 1 KB 585
dist R v Marylebone Justices, ex parte Westminster City Council [1971] 1 All ER 1025 at 1026.
foll Baker [1911] 7 Cr.App.R 252

Iqbal Khan for the Appellants
Kevueli Tunidau for the Respondent

15 March, 2001

JUDGMENT

Gates, J

On 1st December 2000 the 8 Appellants were convicted before the Nadi Magistrates' Court on their own plea of guilty to a single count of rape contrary to sections 149 and 150 of the Penal Code. They were jointly charged. They were each sentenced to a term of 5 years imprisonment.

At the time when the Appellants had pleaded guilty, they were not represented. A petition of appeal was prepared with the assistance of counsel and filed on 7th December 2000. At that time, no record of proceedings in the lower court had been prepared for counsel to scrutinize. Initially the Appellants approached the High Court for bail, which was refused. When the appeal came on for hearing Mr. Khan for the Appellants informed me that he had only received a copy of the record the day before. Mr. Tunidau for the Respondent said he received his immediately before entering court. This should not have happened. The duties of the Chief Registrar of the High Court with regard to petitions of appeal, such duties being carried out at the Lautoka High Court on his behalf by the Deputy Registrar, are set out at section 314 of the Criminal Procedure Code which states:

"314. If the High Court does not dismiss the appeal summarily the Chief Registrar shall –

(a) enter the appeal for hearing;

(b) serve a notice of hearing on the parties;

(c) supply the Respondent with a copy of the petition and a copy of the judgment or order appealed against;

(d) except when the appeal is against sentence only, supply the Respondent with a copy of the proceedings;

(e) where additional grounds of appeal are filed by the Appellant under the provisions of subsection (4) of section 311, serve notice on the Respondent of such filing and supply the Respondent with a copy of the document containing such additional grounds of appeal" (emphasis added)

Though the Deputy Registrar has a duty to supply a copy of the proceedings to the Respondent, the Appellant or his barrister and solicitor, it seems, must make application for "a copy of the judgment or order appealed against, and a copy of the record by applying to the court" (the Magistrates' Court) for such copy [section 310(2)(d)]. Additionally "a person entitled to appeal or his barrister or solicitor or an officer in charge of a prison shall be entitled to peruse the original record of the proceedings at such time as the Chief Registrar or the Magistrates' Court may allow" [Section 311(8)].

Magistrates at such centres should ensure these rights are catered for swiftly, and that no bureaucratic impediment or delay is placed in the path of those wishing to appeal or to consider an appeal. For in addition to the specific rights accorded to potential Appellants by the Criminal Procedure Code there is a need also, a need increasingly recognised by jurists, for openness and transparency to be observed and infused into our justice system. Appellants and their barristers and solicitors are entitled, if they so ask, to a copy of the record of proceedings directly from the Magistrates' Court [Section 310(2)(d)]. They need not wait till the record has been sent to the High Court. The Respondent will receive his copy from the High Court [Section 314(d)]. However, the Deputy Registrar should actively ensure that the Respondent receives his copy by him being supplied with a copy and the Deputy Registrar and his staff should not merely wait for the Respondent to come and collect it from the Registry, as appears to be the current practice.

The grounds of appeal therefore were settled without benefit of sight of the record, and by counsel who had not been present in the lower court. At the appeal hearing, arguments from the Appellants' counsel, anticipated by affidavits filed on the bail application, raised the question of the equivocality of the pleas tendered and of flaws in the facts as presented by the prosecutor.

The Facts as presented

The prosecutor is recorded as providing the court with the following facts:

"All the accused are from Nadroga harvesting cane at Mulomulo. Complainant 17 yrs old is also from Nadroga. On 29/11/00 complainant came to visit her cousin sister who was cooking for the accused. She came in the evening. They all drank grog and methylated spirit. Complainant went to sleep with her cousin. At 10.30 p.m. 1st accused went up to the complainant, got hold of her.

At that time the cousin sister was missing. Complainant struggled with the 1st accused. The 2nd and 3rd accused came and forced her to the ground, clothes skirt and underpant were removed. 1st Accused forcefully had sex while other was holding the complainant. The 2" accused followed and had sex. Then the other 6 accused followed and forcefully had sex. After the 8th accused had sex the complainant ran out of the house half naked and yelled out. Cousin sister came and brought her clothes. Complainant wore her clothes and went straight to Mulomulo Police Station and reported what happened to her. Around 2a.m. police raided the house and arrested the accused took him to Nadi Police Station. Complainant was medically examined - Medical Report tendered.

All the accused were interviewed in the Fijian Language. They all admitted the offence except the 3rd accused but admitted in the charge statement. They were charged. Medical Report -Ex/1.

Interview Statement Ex/2 - A, B, C, D, E, F, G, H.

Charge Statement Ex/3 – A, B, C, D, E, F, G, H.

All 8 accused admit the fact.

All accused convicted as charged."

Flaws in the Facts

Since the Appellants were unrepresented, the prosecutor correctly tendered all of the caution interview statements and charge statements. In The State v Isaia Saukuru (unreported) Lautoka High Court HAA013 of 2000L 6 July 2000 I had referred to this practice, a practice formerly recommended by the Director of Public Prosecutions Office, and said at p.4 of the judgment:

"It is strongly recommended in the interests of fairness, accuracy, and justice, that the practice of handing out to the Magistrate the unrepresented Accused's statements to Police on a guilty plea, be resumed."

I shall refer to this practice and its relevance to the court later.

In dispensing summary justice, a magistrate will find the handling of a rape case with as many as 8 accused, far from straightforward. Rape is one of the most serious cases for a Magistrate, indeed for any court, to handle. Such a case should be heard with special care and should not be rushed. In this case, with 16 statements exhibited by the prosecution, it would have been wiser for the court to retire in order to read all of them carefully before deciding whether the court was satisfied of the individual pleas such that the court could safely enter a conviction: R v Blandford Justices, ex parte G (an infant) [1966] 1 All ER 1021 at p 1026F. Had he done so, the learned magistrate would have discovered that the statement made by the prosecutor in the facts, namely,

"They all admitted the offence except the 3rd accused but admitted in the Charge Statement."

was wildly inaccurate.

The 3rd Accused [Emosi Nacebe, Appellant 5] in the Charge Statement had said:

"I did not do anything to her. I was just about to have sex with her when she stood up and went outside"

In his caution interview he had emphatically denied having sex with her, or having raped her. He had not admitted the offence.

In fact only one of the Accused, Accused 1 Ananaia Nawaqa [Appellant 1] admitted to the police the allegation of rape. He had admitted the complainant did not agree to have sex with him, that he had pulled her from the bed to the floor, that he had raped her, had held her tightly, and that she had tried to get away from him. None of the others admitted in interview to that essential legal element of rape, namely lack of consent. Of the remaining 7 Appellants, only 3 admitted to having sex with the complainant, and all 3 stated it was with her consent. 4 of the Appellants denied having sex with her at all. Even on Appellant 1's account he stated he had acted alone and did not mention that any other Appellant had assisted him by holding the complainant down.

The Medical Report was also exhibited by the prosecutor. Had that been read carefully it would have proved unsettling to the court also. The doctor has recorded the complainant as stating (at para. 12 History related by patient):

"The patient says she was sleeping when she was first held down and her mouth blocked and was then after that raped by 6 men, all of whom she knew."

On the complainant's account to the doctor, an independent witness, she has numbered from amongst the canecutters whom she knew, and from amongst whom that evening she drank yaqona and methylated spirits, 6 of whom she alleges raped her. What of the other 2 Appellants? And which are they? Which of the 8 then, does she say, did nor rape her?

The practice of exhibiting the Interview Statements

In Fiji Accused persons often plead guilty without informed consideration beforehand. Sometimes they do so because they feel they are guilty of moral wrongdoing. When taxed with the legal elements they may deny that one of the elements was true. The position at time of plea in other jurisdictions such as in England or New Zealand is very different, and Accused persons can generally be taken to be more aware of the significance of their pleas. Even in those jurisdictions, as the cases show, misunderstandings do still occur.

In Kuruka Bogiwalu and Anor. v The State (unreported) Court of Appeal AAU0006 of 1996S 15 May 1998, it had been suggested to the court that, as a matter of law, the prosecution should have put before the Magistrate the statements of the Appellants in which the Appellants had denied their involvement in the offences. The court rejected that submission. Such a practice could not be elevated to a matter of law. But with young or disadvantaged Accused, who are not represented, a Magistrate has to be even more vigilant in Fiji than perhaps would be necessary elsewhere so as to ensure that justice is done. In Michael Iro v R [1966] 12 FLR 104 the Court of Appeal at p 106D said:

"In our view there is a duty cast on the trial judge in cases where the accused person is unrepresented to exercise the greatest vigilance with the object of ensuring that before a plea of guilty is accepted the accused person should fully comprehend exactly what that plea of guilty involves. As was said by Lord Reading CJ in Rex v Golatlian 11 Cr. App. R. 79:

"It is a well known principle that a man is not to be taken to have admitted that he has committed an offence unless he pleads guilty in plain, unambiguous and unmistakeable terms."

To this statement of the law could properly be added that not only should the plea be unambiguous but that if should be given in full understanding of all that it implies: R v Vent (1935) 25 Cr. App. R. 55; R v Griffiths (1932) 23 Cr. App. R. 153" (emphasis added)

This passage was cited with approval in Kuruka (supra at p 5). It is a sound and safe practice in Fiji, as was done here, for the prosecution to provide the Magistrate with copies of the Accused's police interview statements where the Accused is not represented. When deciding whether he could safely enter a conviction to the very serious charge of rape, and after examining each statement and the medical report, the Magistrate where appropriate could raise with each of the Appellants who had provided an exculpatory explanation, whether each still persisted with that line of defence. In Kuruka the Court of Appeal noted at p 8 that:

"Not only were the pleas themselves unequivocal, that they were intended to be clear admissions of guilt was confirmed by what each Appellant said in mitigation."

The Magistrate's note of the Appellants mitigation, "Repeat what 1st Accused said'' in regard to reconciliation and an offer of marriage in the instant case is hardly unambiguous confirmation of a plea of guilty to rape.

Magistrates will exercise their good judgment in choosing which elements of an offence to be raised with an unrepresented Accused.

Did the pleas indicate an appreciation of the essential elements of the offence?
Unsurprisingly the mitigation put forward by the 8 unrepresented Appellants to the Magistrate was an occasion of inarticulation. Appellant 1 was aged 27: all the others either 17, 18 or 19. They had studied up to Form II, except one to Class 6, and one to Class 7. They all said they were farmers. None of the Appellants had been in trouble with the police before. Appellant 1 was married, all the others single. In mitigation Appellant 1 said:

"Chance be given to reconcile in the traditional manner. We have discussed one of us can marry the complainant."

Appellants 2-8 are recorded as saying "Repeat what 1st Accused said." This shorthand does not really assist either way on the issue of unmistakeable plea. An offer of marriage seems in conflict with an awareness of having committed an act of rape and might be more consistent with an awareness of moral wrongdoing.

In Michael Iro (supra at p 106F), the learned trial judge had entered the plea of not guilty, and the Court of Appeal observed:

...it is we think clear that he must have taken that action in what he considered to be the interests of the accused. The depositions indicated that the accused, while admitting the facts of the entry and of the attempted rape, had put forward two excuses for his conduct."

And at p 106H the Court said his lordship had:

"caused a plea of not guilty to be entered in fairness to the accused, so that every opportunity should be given to the accused to put forward the defences, if such were available, arising from the excuses for his conduct that he had already made."

The obligations on the court as set out in Halsbury, cited in Michael Iro, [10 Halsbury 3rd Ed. p.408. para. 742] are salutary:

''Plea of guilty. A prisoner is not to be taken to admit an offence unless he pleads guilty to it in unmistakeable terms with appreciation of the essential elements of the offence...

In the case of an undefended prisoner care must be taken that he fully understands the elements of the crime to which he is pleading guilty, especially if a good defence is disclosed in the depositions." (emphasis added)

It is clearly not necessary for the Magistrate to traverse all the elements of an offence with an unrepresented Accused. But some elements have special significance, for instance, knowledge that the goods were stolen in a receiving case R v Ingleson [1915] 1 KB 512, and lack of consent of the complainant in a rape case, compare The DPP v Ram Sami Naidu (unreported) Fiji Court of Appeal Cr. App. No. 34 of 1984 31 October 1984 where there was no special element, and Rupeni Vauvau & 3 Others v The State (unreported) Lautoka High Court Cr. App. No. HAA0014 of 1997L 24.4.1998, where the Appellants had all conceded the lack of consent in their police interviews [in both cases, ultimately, leave to withdraw the guilty pleas was rejected]. In ensuring they arrive at a just result, Magistrates on occasions will need to act cautiously, and good sense will inform them when to probe the basis of a guilty plea see Vent (supra) generally, and "whether it is safe to accept the plea and to enter a conviction" per Widgery J. (as he then was) in R v Blandford Justices (supra at p 1026B). Widgery J. went on to explain at p 1026C:

"In cases, however, where the accused is not represented or where the accused is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to accept the plea as it were provisionally and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about it, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one."

A conviction can safely be entered once the Magistrate feels "that nothing has been disclosed to throw doubts on the correctness of the plea of guilty..." (p 1026E). The provisionality of the acceptance of the plea was favoured by Mishra J. in Navitalai Gukisuva v R. Suva Cr. App. 4/78: cited in Ram Sami Naidu (supra at p 4).

In these circumstances it is right for the High Court in its appellate jurisdiction to intervene. Lord Goddard CJ in R v Durham Quarter Sessions ex parte Virgo [1952] 1 All ER 466 at p 469 H said:

"Quarter sessions came to the conclusion that the plea of Guilty was wrongly recorded, not because the Defendant did not understand or did not intend to plead otherwise than lie did, but because, taking the whole of his plea together, they were satisfied that in law it amounted to a plea of Not Guilty. I think they were right in entertaining the appeal to that extent, and that, as the Defendant had never been tried on a plea of Not Guilty, they were entitled to treat the conviction as a nullity, as the court did in R v Ingleson (3)." (emphasis added)

This was a decision approved by the House of Lords in S. (An infant) v Recorder of Manchester [1971] AC 481. In R. v Tottenham Justices [1970] 1 All ER 879 at p 885d, Lord Parker CJ said:

"The other position is the one which really arises in this case, where the question is not whether a change of plea otherwise unequivocal should be allowed, but whether the plea itself was an unequivocal plea. In such a case it seems to me that the matter can be investigated and a change of plea allowed at any stage in the proceedings before the appeal has finally been disposed of."

In McNally (1955) 38 Cr. App. R 90 at 91, the learned editor of Archbold citing Campbell, ex parte Hoy [1953] 1 KB 585 put to the Court of Appeal the judge's role in these circumstances in the following words:

"If it became manifest to the judge that a plea of Guilty had been entered under a misapprehension - as, for example, when it becomes apparent that the prisoner did not intend to admit all the ingredients of the offence, - it would be the duty of the judge to allow the plea to be withdrawn."

Lord Goddard CJ at p 94 said:

"If he came to the conclusion that there was a question or mistake or misunderstanding or that it would be desirable on any ground that the prisoner should be allowed to join issue, no doubt he would allow him to do it." (emphasis added)

It seems the proceedings in the Magistrates' Court have miscarried. This is because of the incorrect facts put to the magistrate, which may have deterred him from perusing the interview statements exhibited of the young unrepresented Appellants, who were of good character. Had he examined those statements together with the Medical Report, he would have raised with the Appellants the defences preferred in those statements to see if the Appellants were still maintaining those defences, before he accepted their pleas of guilty. Grant (then) Ag. CJ in DPP v Jolame Pita [1974] 20 FLR 5 at p6E put it:

"On a plea of guilty to any offence, the question of what is admitted by an accused should be ascertained with certainty as if facts are put before a court or explanations given which derogate from the plea of guilty or which appear to render equivocal what would otherwise have been an unequivocal plea, then the plea must be changed to one of not guilty) and the case set down for hearing." (emphasis added)

This ascertainment was not done, and such omission amounted to a lack of vigilance sufficient to render the proceedings a nullity cf: R v Marylebone Justices, ex parte Westminster City Council [1971] 1 All ER 1025 at p 1026j. Accordingly the convictions and sentences are quashed. It is necessary to order a trial de novo before a different Magistrate pursuant to Section 319(1) of the Criminal Procedure Code, following Baker [1911] 7 Cr. App. R. 252.

If he had appealed alone I would not have allowed Appellant 1 this latitude. However this is a single joint charge and one for which the facts put up to the Magistrate were significantly wrong, and also the Appellant's affidavit raise issues of voluntariness. Overall I consider it best for Appellant 1 to be re-tried along with the other Appellants.

The Appellants are to appear at Nadi Magistrates' Court at 9.15am on 30 March 2001. They are each bailed as follows:

1. In their own recognizance of S250 each

2. With one surety each of $500

3. Upon condition that they each attend court when required and keep the peace and be of good behaviour

4. They are not to meet or contact the complainant, or any prosecution witness directly or indirectly: and no pressure is to be brought on the complainant or her relatives in any way.

In the result, it is ordered:

1. Conviction and Sentences quashed
2. Trial de novo before a different Magistrate
3. Bail for each Appellant (with conditions as above).

Appeal succeeds.

Marie Chan