Roloka v State [2001] FJLawRp 99; [2001] 2 FLR 387 (9 November 2001)

ELIKI RALOKA v STATE

High Court Criminal Appellate Jurisdiction

9 November, 2001 HAA 048/00L

Dangerous Drugs - accused charged and sentenced to imprisonment on 2 counts for possession of dangerous drugs– appeal against sentence – guilty plea taken without the knowledge of two separate counts of charges – major discrepancies between the facts and the analyst report - chain of possession not clear – exercise of due care and diligence with guilty pleas by unrepresented persons – right to fair trial – guidelines for Magistrates – principles of sentencing – 1997 Constitution ss27(2)(b), 28(1)(d), 29(1); Dangerous Drugs Act ss8(b), 41(2), 44; Dangerous Drugs Act (Amendment) Decree 4/90; Dangerous Drugs Act (Amendment) Decree 4/91 s2; Criminal Procedure Code ss191, 206(2), 319.

On 14 April, 2000, Sigatoka Police arrested the accused from vehicle DN503 with two traveling bags containing dried leaves in plastic bag and in newspaper. The parcels were sent to Koronivia Research Station where it was analysed to be Indian Hemp. One parcel weighed 1108.6 grams and the other weighed 276.9grams. The Appellant was interviewed on 14 April, 2000 and again on 15 April, 2000 where he pleaded guilty. He was unrepresented and a first time offender. The Magistrate sentenced the Appellant on 2 May, 2000 to 5 years and 12 months imprisonment on both Counts to be served concurrently. The Appellant appealed against the sentence on the grounds that the total weight of marijuana was in dispute, that the State was at error in not giving a full disclosure during the proceedings of the trial, that the trial judge did not take into account that he was a first offender and therefore ignored important aspect of sentencing and that the trial judged failed to consider the guilty plea.

Held-(1) Magistrates should request and peruse the caution statement of an accused when accepting guilty pleas by unrepresented accused persons based on facts outlined by the Prosecution.

(2) The sentencing Magistrate should have considered major discrepancies between the facts and the Government Analyst Report, as the range of sentence depends on the amount seized.

Convictions and sentences quashed. Appellant ordered to appear before the Sigatoka Magistrates' Court for a fresh plea to be taken. State to reconsider the charges and make appropriate amendments. Bail extended.

[Note: the Dangerous drugs Act has been repealed by the Illicit and Drugs Control Act 2004 9/04 WEF 9 July 2004]

Cases referred to in Judgment
Ananaia Nawaqa & Ors v State (2001) HBM 0014/00L 15 March 2001
Dineshwar Goundar v State (2001) HBM015/00L Judgment 3 August 2001
Jone Koro Sekinabou v State [2001] HAA 0013/01L 20 April 2001
Kuruka Bogiwalu & Ifereimi Nakauta v State [1998] AAU0006/96S 15 May 1998
State v Isaia Saukova (2000) 1 FLR 135
Suliasi Sivaro v State [1998] AAU0003B/97 15 May 1998
Suren Singh & 4 Ors v State (2000) 2 FLR 127
Thomas Dean v State [2001] HAA 0020/00L 11 May 2001

Appellant in person
Davendra Prasad for the Respondent

9 November, 2001.

JUDGMENT

Prakash, J.
On 18 April 2000 the Appellant appeared before the Magistrates' Court at Sigatoka charged with the following two (2) offences:-

First Count

FOUND IN POSSESSION OF INDIAN HEMP: - Contrary to section 8(b) and 41(2) of the Dangerous Drugs Act, Cap 114 and section 3 of the Dangerous Drugs Act as amended by Decree Number 4 of the Republic of Fiji, Gazette Number 10 of 1990 and section 2 of the Dangerous Drugs Act (amended) Number 1 Decree 1991.

Second Count

ELIKI RALOKA, on the 14th day of April 2000 at Lawaqa Sigatoka in the Western Division, was found in possession of I 108.6 grams of Indian Hemp.

FOUND IN POSSESSION OF INDIAN HEMP: - Contrary to section 8(b) and 41(2) of Dangerous Drugs Act Cap. 114 and section 3 of the Dangerous Drugs Act as amended by Decree Number 4 of the Republic of Fiji (amended) Gazette Number 10 of 1990 and section 2 of the Dangerous Drugs Act (amended) Number 1 decree 1991.

ELIKI RALOKA, on the 14th day of April 2000 at Lawaqa Sigatoka in the Western Division was found in possession of 276.9 grams of Indian Hemp.

He was unrepresented. According to the records of the Magistrates' Court he pleaded "guilty" to both counts. The facts were outlined by the Prosecution. The Appellant apparently admitted the facts. He was convicted as charged. He was a first offender. The learned Magistrate then adjourned the case to 2 May 2000 "for clarification of appropriate sentence to impose". On 2000 the Appellant was sentenced to 5 years imprisonment on Count 1 and 12 months imprisonment on Count 2. Both sentences were to be served concurrently.

The Appellant filed an appeal in person. It is relevant to quote the relevant excerpts from his Petition of Appeal in his own words:

"Sir I have pleaded guilty, without the knowledge that I have been charged with two counts, separately, including the two bags were found inside the truck which I was travelling. I have maintained from my cautioned interview that the bag, which contained the two parcels of marijuana (276.9 grams) is mine. The Officer In Charge of the interview erred in fact when he wrongfully added another bag which contain 52 parcels in my possession. He also erred in fact when he at no time did he read my statement to me after the interview took place and which I was ordered to sign. Sir I am a first offender and the first time to appear to any court or any criminal case. Therefore I implore you, your sincerely Sir for a retrial and justice on the grounds which is:

(1) Disputing against the total weight of marijuana which I was charged.

(2) Error of the state in not giving me a full set of disclosure during the proceedings of this case.

(3) The trial Judge did not take into account of my being a first offender.

(4) And therefore ignored the important aspect of sentencing namely the Principal of Totality.

(5) Failure of trial Judge is not considered my plea of guilty".

In perusing the Court records at the hearing of the Appeal the Court was seriously concerned at the charges, the facts outlined and the Analyst report tendered. The Appellant also mentioned the problems with his caution interview notes, this was made available to the Court by the learned State Counsel. An Analysis report was tendered. Since the Appellant also mentioned the problems with his caution interview in his Petition the Court also perused view of the caution concerns the learned state counsel conceded the there were major discrepancies between the facts and the amount of drugs analysed, according to the Analyst Report. He also suggested that the basis of the charges were not clear. He concurred with the Court that there may need to be a retrial in this case. After the hearing the Court bailed the accused to fully consider the issues. He was bailed to appear for judgment on 9/11/01.

The Facts of the Case
The facts outlined by the Prosecution before the Magistrates' Court was rather sketchy. They are stated as follows:

"On 14/04/2000 in the morning, Police Sigatoka received information from reliable sources that vehicle DN503 had left Keiyasi heading towards Sigatoka. Police then mounted road block at Lawai where particular van stopped. Accused sitting with other passengers in van. Van taken to Police Station. Van searched and two travelling bags found and bags searched and found to contain dried leaves in plastic bag and then in newspaper - Leaves believed to be Indian Hemp. When accused questioned about 145, he initially denied but later admitted that stuff belonged to him. Parcels sent to Koronivia Research Station. Analysed to be Indian Hemp with one parcel weighing 1108.6 grams and the other 276.9 grams. Tender both analyst reports. Accused charged".

There were two (2) Analyst Reports tendered. The analysis of the leaves were done on the same day. One report describes the samples provided to the Government analyst as follows:

"2 parcels of dried leaves wrapped in a Fiji Times found inside the green carry bag"

According to the report "The dried leaves are Indian Hemp leaves botanically known as cannabis sativa"

Results: Samples Weight (g)

1 150.1 Total weight
2 126.8 = 276.9g

The second report attached states the Description of Sample as follows:
"33 parcels of dried leaves found in white plastic bag".

According to the report "The dried leaves are Indian Hemp leaves botanically known as cannabis sativa

Total weight = 1 108.6g
Results attached".

The results attached are not in the records. However, these are evidently the computer print out listing the weight of each of the 33 parcels of the samples analysed.

It is evident that the facts do not match up to what was analysed. While the total weight of the substance seized may be correct it is not clear whether what was seized was what was analysed. As such the chain of possession is not clear (see Suliasi Sivaro v State FCA Cr. Appeal No. AAU 0043 of l998S). It is evident from the caution statement that there are serious problems with this case.

The Right to a Fair hearing
Over the past 12 months or so the High Court at Lautoka has emphasised the need for the Magistrates' Courts to exercise care and due diligence when dealing with guilty pleas by unrepresented accused persons (see Ananaia Naiwaqa & Others v State (Misc Action HBM 0014/2000L); Jone Koro Sekinabou v State (Cr App HAA 0013/2001L); State v Isaia Saukova (C App HAA 013 of 2000L) Dineshwar Goundar v State (Cr App HBM 015 of 2000L). This is most imperative when unrepresented accused persons are brought to Court under police custody. The Appellant has also raised the issue of legal representation and the need for disclosures. It is not clear from the records whether he was informed about his right to Counsel. It is also not clear whether copies of the Government reports were given to him.

In Suren Singh & 4 Others v State (Cr App 79/2000S, unreported 26/10/00), Shameem J had dealt with the Constitutional rights to counsel and right to a fair trial (Sections 28(1)(d) and 29(1) of the Constitution). Her Ladyship had stated (at page 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".

Shameem J had further provided some guidelines for Magistrates to adopt (at page 10) which is worth reiterating for the benefit of all Magistrates:

1. Before you plead to the charge, I must inform you that you have the right to defend your set 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 Sentencing process
In this case the learned Magistrate had adjourned the case for almost 2 weeks to consider the issue of sentencing. As such one would have expected her to consider the facts fully to determine the appropriate sentence. If she had studied the Government Analyst report in relation to the facts she would have realised the discrepancies as to what or how many parcels were seized and how many parcels were analysed. In the case of Thomas Dean v State (Cr App HAA 0020/2000L; 11/05/01) this Court had emphasised the need for the sentencing Magistrate to establish the amount of drugs seized and analysed. This is imperative since the range of sentences depends on the amount seized. It maybe useful to reiterate the principles involved in discerning the facts relevant for sentencing.

According D.A. Thomas: Principles of Sentencing (2nd Edition):

"The formal determination of guilt, whether by plea or by verdict, does not necessarily establish a sufficiently precise factual basis for the sentencer to assess the culpability of the offender. The responsibility of the sentencer to make his own assessment of the facts for this purpose is subject to an evolving body of principle designed to ensure that the version of the facts adopted for the purpose of sentence is supported by evidence and reached according to appropriate procedural standards. The first principle is that the version of the facts on which the sentence is premised must be consistent with the format determination of guilt" (pp.366-67)

The "finding of fact must be support & by the general body of the evidence ... If a fact relevant to sentence but not affecting conviction is in dispute between different witnesses, the sentencer is entitled to reach his own conclusion on the credibility of the witnesses concerned and base his sentence on that conclusion". (Thomas opcit pp. 369-370). The analyst report is part often evidence before the Court (admitted under section 191 of the Criminal Procedure Code). Under Section 44 of the Dangerous Drugs Act it is "prima facie evidence of the facts therein stated".

On a proper perusal of the Analyst Report a clarification was necessary as to the amount seized, that is, number of parcels and what was analysed. Did this match the facts outlined by the Prosecutor? On a plea of guilty it is incumbent on the Prosecutor "... to give a full account of the circumstances of the offence, on the basis of the evidence that would have been called" (Thomas opcit p 371).

The Caution interview
A perusal of the accused caution interview notes indicates serious problems with the charges and the facts outlined. Why he was charged for 2 counts of Possession of Indian Hemp remains unclear. If at the drugs found on him were found together in the same transaction on the same date (as in the charge) it is not clear why 2 Counts were put before the Court. The Appellant has raised issue with this in his Petition of Appeal.

According to the caution interview notes the accused was first interviewed on 14/04/00. This was the day of the alleged offence. He was then interviewed on 15/04/00. The Court does not need to detail the deficiencies in the conduct of the caution interview. It was quite unprofessionally conducted without proper, specific questions put to the Appellant regarding what was seized. His admissions are also unclear. On 14/04/00 no material admissions are made by the Appellant. On 15/04/00 some relevant responses were obtained. He was asked about what was given to him by one Miliana Bucere. He stated in response to Q42: "A plastic of green leaves". He later states that he put this and some letter "inside my carry bag". He further states he had one bag with him on 14/04/00. He identified this bag and letters. The allegation is then put to him that "a parcel of dried marijuana leaves was found in the same bag. He answers: "I didn't know". While it is apparent he had some leaves with him it is not clear how many bags and how many parcels were seized from him. What he admitted is not clear. The relevant facts as put before the Court states "Van searched and two travelling bags found and bags searched and found to contain dried leaves in plastic bags and then in newspaper. When accused questioned about bags, he initially denied but later admitted that stuff belonged to him. Parcels sent to Koronivia Research Station. Analysed --- one parcel weighing 1108.6 gram and the other 276.9 grams (emphasis added). It is not clear what kind of bags were referred to. What parcels were sent to Koronivia Research Station?

It is c1ear the Appellant did not admit to having two travelling bags nor 2 parcels of the "stuff' whatever this meant. As stated earlier, the Analyst report indicates 35 parcels were analysed. Where did the 33 other parcels come from? The analyst reports describe "4 parcels of leaves wrapped in a Fiji Times found inside the green carry bag" and "33 parcels found in white plastic bag". All these neither tie up with the facts stated nor what was put to Appellant in his caution statement. As such what he admitted when the facts were outlined remains unclear. In his petition he states that he was charged with two Counts separately "without his knowledge". He denies he admitted that the two bags inside the truck was his. He states he admitted in his caution interview that the bag, which contained the two parcels of marijuana (276.9 grams) is mine".

In her sentencing remarks on 2/05/2000 the learned Magistrate states: "The accused was found with two separate parcels both totaling 1385.5 grams of Indian Hemp". This is not correct from the Government Analyst report which was before her. The facts also do not support this. Nor does the caution statement, which apparently was not requested nor tendered.

It is clear that this was a badly investigated and prosecuted case. The learned Magistrate in her sentencing remarks was conscious that this was not a simple case of possession. As she states "It is obvious from the quantity that the drug was for commercial purpose and not for his own personal consumption". A perusal of the caution statement would have revealed that the Appellant was most likely the courier. The caution interview indicates the name of a potential supplier. It is clear that this case had called for a more thorough investigation. It is apparent that the Appellant was just a small cog in the wheel.

It is apparent that the seizure of such a large quantity of drugs made the Police thread roughshod over the investigation process. They were & apparently looking for a quick fix. They needed someone with all the quantities of drugs seized. The Appellant was denied due process. He has he stated that he was in Police custody for 3 days. It is clear he was arrested on 14 April 2000 when was first interviewed. He first appeared in at the Sigatoka Magistrates' Court on 18 April 2000. He may have been in Police custody for 4 nights, unless he was bailed earlier. This is not apparent. If he was so held then there may have been a breach of Section 27(2)(b) of the Constitution. Since all the facts surrounding his arrest and detention are not before the Court it is not possible to consider the constitutional provision. There is no record of any complaints raised by the Appellant at his first appearance in Court.

This Appeal could have been disposed of by just considering the discrepancies between the facts outlined by the Prosecution and what is contained in the Government Analyst reports. However, there is also a problem with the acceptance of guilty pleas. The pleas were not unequivocal. Section 206(2) of the Criminal Procedure Code was not fully compiled with. There were 2 Counts of possession put to the accused. The facts outlined and the Government Analyst report did not completely make out the elements of each offence. There was confusion about the facts. The Appellant did not admit facts which the Prosecution stated that he admitted, when interviewed by the Police.

The Acceptance of Guilty Pleas
In a significant number of cases the High Court at Lautoka has had to order a retrial due to the lack of adherence to the Criminal Procedure Code and the relevant constitutional provisions. It is imperative that on Guilty pleas Magistrates' Courts need to exercise due diligence. The bulk of the criminal cases in the Magistrates' Courts are disposed due to Guilty pleas. Most of the accused are unrepresented. It is usually because of the dissatisfaction with their sentences that they appeal. On appeal the High Court has to consider all the matters put before it including the facts put before the Magistrates' Courts, exhibits tendered and caution statements. If necessary, and on the basis of the Petition of Appeal, the High Court can call for further evidence. The caution interviews become relevant when facts put forward by the Prosecution assert that the accused was interviewed and he admitted certain facts or words to that effect. In view of the right to a fair trial the High Court then has to verify this. This is incumbent when an unrepresented Appellant makes contrary assertions in his Petition of Appeal or at the hearing of his appeal. As the Court of Appeal has stated: "whether a plea of guilty is effective and binding will be a question of fact to be determined by the Appellate Court ascertaining from the record and from any other evidence tendered. what occurred at the time the plea was entered" (Kuruka Bogivalu & Ifereimi Nakauta v State FCA Cr App No AAU 006/96, emphasis added).

In the case of Jone Koro Sekinabou referred to earlier this Court had stated as follows:

"In both the State v Isaia Saukova Cr. App HAA 013 of 2000L, and Ananaia Nawaqa & Others (opcit) Gates J has recommended that the Prosecution should provide the Magistrates with copies of the Accused's police interview (caution) statements where the accused is unrepresented and is pleading guilty. In Kuruka BogivaIu & Anor (opcit) the Court of Appeal has state that this practice could not be elevated to be a requirement as a matter of law. However, Magistrates should, as a matter of sound practice and to ensure they meet the requirements of Section 206(2) of the Criminal Procedure Code insist that they see the accused caution interview to ensure the plea is unequivocal".

While it may not be a legal requirement it is sound practice that Magistrates request and peruse the caution statements of accused when accepting guilty pleas based on facts outlined by the Prosecution. This will ensure compliance with section 206(2) of the Criminal Procedure Code. A perusal of most Magistrates' Court records indicate that in the outline of the facts the Prosecutor would suggest that the accused admitted the offence when interviewed by Police. Some of the alleged admissions go to the essential elements of the offence. In many cases, on appeal, it has been found that the accused do not make such admissions. In the cases referred to earlier the High Court at Lautoka had set aside guilty pleas on serious offences such as rape and causing death by dangerous driving on a perusal of the caution interviews. The need to peruse carefully the exhibits tendered such a medical reports and Government analyst reports cannot be over- emphasised.

It is clear that in the Appellant's case the facts outlined were not supported by the Government Analyst report nor the Appellant's caution statement. In his Petition of Appeal and caution statement the Appellant admits part of the offence. This pertains to Count 2 dealing with 276.9 grams of Indian Hemp. This Count may be made out. However, given the other issues mentioned it is unsafe to accept the guilty plea. In view of all that has been stated above this appeal is allowed. The convictions and sentences are quashed. Under Section 319 of the Criminal Procedure Code this Court can order a retrial. The length of time since the commission of the offence is about 18 months. The Appellant has served I5 months of a total sentence of 5 years. The amount of drugs involved is significant. The Court orders the Appellant to appear before the Sigatoka Magistrates' Court so that a fresh plea is taken before another Magistrate. The State may need to reconsider the Charges and make appropriate amendments. The bail granted to the Appellant on 12110/01 is extended for his Appearance at the Sigatoka Magistrates' Court on 4th December 2001 at 930a.m.

Appeal allowed.

Ashika Bali.