Goundar v State [2001] FJLawRp 61; [2001] 2 FLR 254 (3 August 2001)

DINESHWAR GOUNDAR v STATE

High Court Miscellaneous Application
8 May, 3 August 2001 HBM 015/00L

Act with intent to cause grievous harm – appeal against conviction – whether Magistrate erred in advising prosecution to add new charge of attempted rape and modify burglary charge – whether Magistrate erred in failing to obtain plea on the whole charge from unrepresented accused – principles underlying "altered charge" – major amendments to information, not procedural in nature – accused's constitutional rights to counsel and fair trial not observed - Criminal Procedure Code ss204(1), 214, 311(4), 314(e), 317; 1997 Constitution ss28(1)(d), 29(1)

attempted rape –whether spur of the moment desire for sex amounts to attempted rape

The Appellant had said in a caution interview that statement that after drinking gin, he broke in through the Complainant neighbour's bathroom window with an intention of stealing, but when he saw the Complainant, he changed his mind and decided to have sex with her. She screamed but in process of stopping her with an iron rod, it hit her face. When the Appellant saw blood on the Complainant's face, he instantly expressed remorse but this latter fact was not included in the brief facts, which were tendered for sentencing. The magistrate amended the charges from intent to commit rape to intent to commit burglary and included an additional charge of attempted rape. These 2 counts were read to the Appellant and fresh pleas taken, but not for count 2 of act with intent to cause grievous harm. The appellate Court referred to authority that where full particulars are given after amendment, there was no obligation on the magistrate to put all the counts again to the Accused, but where there was a serious charge facing the Accused, as here, such irregularity could not be cured. The appellate Court noted the Appellant was unrepresented by counsel at the time fresh pleas were taken, and the provision of duty solicitor from the legal aid scheme for the purposes of mitigation did not amount to a full and sound admission of all the legal elements of the offence.

Held–(1) Failure of the trial Court to put to the Appellant again the full charge containing all 3 counts, in the amended form, as required by section 214 by Criminal Procedure Code, and failure to positively inform young unrepresented Appellant of his right to counsel to the grave charges rendered the proceedings a nullity. This was not a mere procedural irregularity. Appellant has not been accorded a fair trial overall. Alternatively, failing to put the full charge resulted in procedural irregularity, compounded by the failure to protect the Appellant and to accord him his right to counsel under section 28(1)(d) of the Constitution.

(2) Wanting to have sex with a Complainant for which the Appellant made request, an idea formed on the spur of the moment, does not alone necessarily amount to attempted rape. Other aspects of the case are equivocal and raise trial issues.

3 convictions and sentence quashed and case remitted for fresh pleas to be taken before a different magistrate. Appellant remanded.

Cases referred to in Judgment
cons Attorney-Gen v Parmanandam (1968) 14 FLR 6
foll Eronini v The Queen (1953) 14 Selected Judgments of the West African Court of Appeal 366
appl Hari Pratap v R (1968) 14 FLR 93
foll R v Panapasa Silosomo (1976) 22 FLR 84
foll Sucha Singh v R (1968) 14 FLR 222
appl Suren Singh & 4 Ors (2000) 2 FLR 127.

Iftakhar I. Khan and Natasha Khan for the Appellant
Linda Fagbenro for the Respondent

3 August, 2001

JUDGMENT

Gates, J
On 29 November 2000 the Appellant was convicted on his own plea of guilty of three offences before a Resident Magistrate sitting at Lautoka. He was sentenced as follows:

Count 1 Burglary 2 years imprisonment

Count 2 Act with Intent to Cause 5 years imprisonment

Grievous Harm

Count 3 Attempted Rape 4 years imprisonment

The offences were alleged to have taken place on 14th November 2000. The complainant was a 39 year old female missionary of the Lautoka Community Church. Her husband, also a missionary, was away in New Zealand for 3 weeks on ministerial business. That night the Complainant and her 3 children went to sleep on the Complainant's bed. Her home was locked. The Appellant aged 1 7 lived next door with his parents. Earlier in the evening he had been drinking gin. He gained entry through the Complainant's bathroom window. He said in his caution interview statement which was tendered to the court that he was outside in the street after 11.15pm and decided "to enter (the Complainant's) house and to steal something." He said further "I went to the bedroom where (the Complainant) was sleeping on bed with her children. ....As soon as I saw (the Complainant) sleeping in such a way, I got tempted and changed my mind to have sex with (her). .. ..I went to her and banged her shoulder. I told her in Hindustani that I love you - I want to have sex with her. She screamed for help and I tried to stop her and in the process as I got hold of piece of iron rod with handle from headrest of bed and whilst stopping her from yelling, the iron rod suddenly hit her on the face."

In contrast the Complainant said she had also been punched by the Appellant several times on the chest (not stomach, as put to the Magistrate) and on the face.

The Complainant's statement was not made available to the Magistrate, but one significant part was omitted from the facts. It was this. When, by a subterfuge, the Complainant managed to escape to the kitchen, she was able to put on the light. By this light she recognised her neighbour's son, the Appellant. She added "As soon as this man saw blood oozing from my face. he started apologising, saying he was sorry that he hurt me, and said that he did not mean to hurt me". This instantaneous expression of remorse was an important matter to be taken into account when sentence was being considered. It should have been included in the facts of the Investigating Officer who had failed to include it in his "Brief Facts" in the police dockets which were tendered. It is the duty of the police prosecutor or State Counsel to ensure that facts significant to the sentencing process are brought to the Court's attention. Where an Accused is unrepresented and faces very serious charges, the court needs to be able to rely on the relevance, accuracy and fairness of the prosecutor's facts as put up to the court. The observations of Grant CJ in R v Panapasa Silosomo (1976) 22 Fiji LR 84 at p 86B apply equally 10 trial and to guilty plea proceedings.

The Appellant led her two sons back to the bedroom, they had followed their mother in tears to the kitchen. The Complainant then ran out of the back door and screamed for help. She was very distressed. She received further injuries when trying to climb over the barbed wire fence. The Appellant ran off to a cassava patch where he spent the night. He gave himself up in the morning and made a full confession of his deeds to the police.

The Complainant was examined that night at Lautoka Hospital She was observed to be "very distressed". She had a laceration on the left maxillary prominence, which on later x-ray was found to be fractured. There was considerable bleeding from this injury. She was bleeding from both nostrils. She had a black eye injury to the right eye, with swollen red eyeball. She had bruises with skin torn off on her right elbow. She had skin torn off 2 areas on the front of the right knee. There was a blunt injury on her chest wall. It was necessary to have the laceration on the left maxillary, which was a deep gash, stitched. The doctors noted this injury would give rise to a permanent facial scar. The Magistrate was assisted by a helpful counseling report on the Complainant her husband, and family.

It was not clear where the file (the weapon) had come from. The Appellant claimed it was by the bedhead. It must have caused the deep gash, the most serious of the injuries.

At the time of the plea the Appellant was not represented. From 27 November 2000 onwards he was provided with legal aid counsel, who mitigated for him prior to sentence being passed. The court had the benefit also of a probation officer's report.

At the appeal hearing I gave leave for the filing of an amended Petition of Appeal. This should have been filed by the Respondent "not later than three days before the date fixed for the hearing of the appeal..." [section 311(4) of the CPC] so that the Deputy Registrar could comply with section 314(e) of the CPC and "serve notice of such filing and supply the Respondent with a copy of the document containing such additional grounds of appeal". I indicated I would allow Ms Fagbenro for the Respondent further time to reply if she were embarrassed by the late filing. In the event, she did not require further time. However it is important for counsel to bear in mind, the filing of additional grounds should be done in good time to allow, in fairness, for a full response from their opponents. The cost of an adjournment of an appeal if necessary may have to be borne by an Appellant in such cases [section 317 CPC].

An additional affidavit was filed on the day of the hearing, to which the Respondent took exception. It contained no significantly new matter and I disallow it now for the purposes of consideration of the appeal.

It was clear from the submissions of counsel for the Appellant that the appeal narrowed down to two main grounds. Those grounds were, that the pleas of guilty were equivocal, and that the sentence was too harsh and excessive. There were other grounds arising from the Amended Petition and I shall deal with some of those that have significance for this judgment.

Amendment of the Charge bv the Magistrate

It was said that the learned Magistrate had erred in advising the prosecution to add a new charge of attempted rape [Count 3], and in advising and allowing the amendment of the burglary charge [Count 1]. I set out the relevant part of section 214 of the CPC.

It reads:

"214. - (1) Where, at any stage of the trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or inform, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

Provided that—

(a) where a charge is altered as aforesaid the court shall thereupon call upon the accused person to plead to the altered charge."

It would appear the Magistrate considered the charge of attempted rape an appropriate addition based on the facts of the case as put to him by the prosecutor. Additionally he considered that the count of burglary should be amended from an intent to commit rape to an intent to commit burglary. On the material before him this seemed also appropriate. In view of the duties cast on the Magistrate by section 214, the Magistrate's action in advising amendment and in allowing it in both instances was unremarkable and correct. The Magistrate has noted in the record that he explained the amendment of the charges to the Appellant. He also noted that a fresh plea was taken on Counts 1 and 3 after those counts were read to the Appellant in their new7 or amended form. Count 2 along with Counts 1 and 3 was not put again, that is the entire charge sheet was not put so that fresh pleas could be taken.

In Attorney-General v Parmanandam [1968] 14 Fiji LR 6 Hammett CJ said at p23G:

"It appears to me from the first proviso to this subsection that where a charge is altered it is mandatory for the Court to call upon the accused to plead to the altered charge."

His lordship commented at p 24 D:

"If however the 3rd Count was in fact amended, I am of the opinion that the failure to take the accused's plea to the amended charge was a fatal and incurable defect in respect of the 3rd Count in the proceedings in the Court below in these circumstances."

For other reasons, his lordship ordered that the acquittal on Counts 1 & 3 should stand. However the conviction on Count 2 was to stand also. In the same year the Court of Appeal were called upon on two occasions to consider the meaning of the word "charge". In Hari Pratap v R [1968] 14 Fiji LR 93 at p 97D the Court said of the section equivalent to the present section 214:

"The Criminal Procedure Code does not define the word "charge" but it is obvious that the question of the construction of section 204 (1) must be approached in the light of the earlier sections quoted, which show that a charge is something which contains statements of the sum total of the offences which are intended, to be tried together." (emphasis added)

and at p 97F:

"But in any event the addition of a new charge, in the sense a section 121, would not be the "alteration" of an existing charge. Therefore if "addition of a new charge", is to have any meaning at all, it must be read as "addition of a new count." The question is whether that consideration entitles the court to construe the word "charge" as "count" where it appears in proviso (a) to the section."

The Court of Appeal disagreed with the learned Chief Justice's careful reasoning in the High Court and gave their reasons for doing so at p 98 C:

"Where there is only one offence contained in a charge it may be amended by a change in its own wording, the substitution of another offence or the addition of one or more counts. We feel that where the learned Chief Justice refers to "a charge, consisting of one count charging an offence" he visualizes it being amended only in its particulars or by substitution. Then the direction to call upon the accused person to plead to the "altered charge" can only mean plead to the resultant varied or new charge. But where it is amended by the addition of another count surely the "altered charge" is the original charge as altered by the addition. We do not see that any difference arises whether there is only one offence contained in the original charge or whether there are two or more.

Section 204 clearly embraces in the concept of alteration, variation, substitution and addition. Whichever course is taken it is the original charge which is altered. When you add material to an existing object it is the existing object which is altered — it is not the new material. When you add a count to an existing charge it is not the new count which is altered, but the existing charge. We see no escape from the plain meaning of the words "altered charge" in proviso (a) and do not find anything that can be drawn from the one anomaly in the earlier part of the section, of sufficient weight to affect what we consider to be the only possible construction of the proviso."

What was the purpose or advantage for such a provision? There were certain advantages for an Accused however in having the whole charge with the additional count put again, which were suggested by the court at p 98 F:

"It is idle to speculate upon the underlying reason for the provision. Where an accused person has pleaded not guilty to a number of counts in a charge he is at liberty to change his plea to "guilty" at any time so the provision offers him no advantage. On the other hand it does appear to afford him the opportunity where he has pleaded "guilty" to some counts and "not guilty" to others of reversing his plea of "guilty ". That is just. An accused person has pleaded guilty to counts (a) and (b) and not guilty to counts (c) and (d) of a charge he is surely entitled to reconsider his position if the prosecutor then proposes to add two new counts."

The court found that the result of the failure to take the Appellant's plea to the whole charge upon the amendment is that the proceedings thereafter became a nullity. A similar conclusion had been reached in two Nigerian cases: Fox v Commissioner of Police (1947) 12 Selected Judgments of the West African Court of Appeal 215; and Eronini v The Queen (1953) 14 Selected Judgments of the West African Court of Appeal 366.

The Fiji Court of Appeal found they were unable to agree with the Chief Justice when he concluded that this was an error curable by the application of the proviso. Accordingly grounds (a) and (b) in the appeal before me now, whilst not directly focused on this aspect of amendment, must succeed. I share the reluctance the Court of Appeal expressed at the conclusion which is thus presented. But until such time as section 214 is amended to distinguish between "the charge" and "the individual counts in the charge" so that proviso (a) of section 214 would require the court to call upon the Accused to plead only to the amended, substituted, or added counts rather than to the full charge containing all of the counts, the present law, as it is must be applied.

In Sucha Singh v R (1968] 14 Fiji LR 222 the prosecution had applied in the Magistrates' Court to delete from Count 5 the number of a motor vehicle from the particulars. The Court of Appeal held this to be an unnecessary amendment since the charge had given full particulars both before and after the amendment. In these circumstances, the Magistrate was not obliged to call upon the Accused to plead again all of the counts in the charge. Gould VP dissented from that opinion. The view expressed as an alternative by Hutchison JA was that the error was an irregularity only, which could not make the proceedings a nullity. In that case the amendment was trivial and there was no question of a miscarriage of justice. The position in the present case is more grave. The Appellant was a 17 year old of limited schooling without counsel at the time of the amendment and further plea. In addition the additional charge was one of attempted rape, a serious charge, and the amendment to the burglary count also could not be described as trivial. Upon the facts presented it is possible, as was foreshadowed in Hari Pratap (supra) that consideration could have been given by the Appellant's legal advisers to a change in the pleas. A plea of guilty to the burglary and grievous harm counts might have been proffered, and the attempted rape might have been challenged. Deliberations to decide such matters could not be carried out because at the time of the major changes to the charge sheet the Appellant stood alone without the advantage of counsel.

Ground (c) said the Magistrate had erred in not advising the Appellant, by virtue of the nature of the charges and amendments, to seek legal advice. A Legal Aid Commission counsel was assigned to the Appellant for 27th November 2000, but by then the amendments had been made and fresh pleas to 2 of the counts taken. He may not have been assigned to deal with contested matters, as seems to be the case with the Duty Solicitor Scheme. In mitigation remorse was expressed through the Appellant's counsel for what happened to the Complainant. As has been said so many times before, pleas of guilty amounting to admissions of mere wrongdoing, do not necessarily amount to a full and sound acceptance by an Accused of all of the legal elements of an offence. In mitigation his counsel put forward the following without query from the court:

"Circumstances show Accused no intention to commit offence and cause serious injury."

Wanting to have sex with the Complainant for which he made request, an idea formed on the spur of the moment, does not alone necessarily amount to attempted rape. There are other aspects of this case which are equivocal, not least the expression of immediate remorse, and the cause and purpose of the violent struggle. In his interview his comment on this was:

"She screamed for help and I tried to stop her"

It remains to be seen whether he struggled with her to overpower her in order to force her to have sexual intercourse with him, or whether he was trying to quieten her and subdue her for the unsurprising panic reaction when finding a drunken man in her bedroom. In view of the orders to be made, I make no further observations on the evidence. These are trial issues.

In Suren Singh & 4 Others v The State (unreported) Suva High Court Cr. App. No. 79 of 2000; 26 October 2000 Shameem J. in interpreting section 28(1)(d) of the Constitution (right to counsel), as well as section 29(1) (right to a fair trial) had this to say (at p 9):

"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."

Shameem J. set out a recommended format for according these rights. It is worthy of further publication (from p10):

"For the guidance of Magistrates in the future however I suggest the following format 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 hear 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?

An adherence to the above format may reduce substantially the numbers of appeals filed on the grounds of unfair procedure."

The amendments were major not minor. Section 214 was not followed by the putting again of the full charge containing all 3 counts. In addition, prior to plea, the young unrepresented Appellant was not positively informed of his right to counsel. Since these were grave charges, the failure to put the whole charge again rendered the proceedings a nullity. This was not a mere procedural irregularity. Additionally on consideration of the facts adduced, the caution interview statement and the mitigation, I am not satisfied the Appellant has been accorded a fair trial overall. If I had any doubt on the question of nullity. I would find the lesser effect of failing to put the full charge namely procedural irregularity, compounded by the failure to protect the Appellant and to accord him his rights under section 28(1)(d) of the Constitution.

In the result:

1. All three convictions are set aside;

2. All three sentences are quashed;

3. The case is remitted to the Magistrates' Court for pleas to be taken before a different Magistrate and, if need be trial de novo;

4. The Appellant is remanded in custody to be produced before the Magistrates' Court Lautoka on 10th August 2001 at 9a.m.

Appeal succeeds.

Marie Chan