Fanasia v Director of Public Prosecutions [1985] SBHC 11; [1985-1986] SILR 84 (25 July 1985)

1985-1986 SILR 84

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 19 of 1985

FANASIA

v

DIRECTOR OF PUBLIC PROSECUTIONS

High Court of Solomon Islands
(Wood C.J.)
Criminal Appeal Case No. 19 of 1985

23 July 1985 at Honiara
Judgment: 25 July 1985

Appeal against conviction under Motor Vehicle (Third Party Insurance) Act 1972 s.8 - plea of guilt not unequivocal - unrepresented and unaware of defence available under s.8(3) – judge’s duty to enquire.

Facts:

The appellant was convicted on his plea of guilty by the Magistrate’s Court (Central) of using a vehicle on the road without a policy of third party insurance c/s 8 of the Motor Vehicle (Third Party Insurance) Act 1972. Notwithstanding his guilty plea, the appellant appealed against his conviction on the ground that the Magistrate failed to explain a defence open to him under s.8(3) of the Act and so his plea, made while unrepresented and not aware of the defence, was not a proper, full and unequivocal plea.

Held:

1. Where an accused is not represented or is of tender age or for any other reason there is doubt as to his ability to decide whether he is guilty or not, the court ought to defer acceptance of the guilty plea and enquire into the matter to see whether there is any undisclosed factor that would render the guilty plea misleading. If the court then finds that the accused really meant to plead not guilty then that plea must be entered. (R. v. Blandford Justices ex parte G (an infant) (1966) 1 All E.R. 1021 per Widgery J. at p. 1026 approved and followed).

2. In this case if the Magistrate had made further inquiry and the accused had been made aware of his defence, a plea of not guilty would have been entered.

Accordingly, the conviction was set aside and a retrial on the plea of not guilty before a different magistrate was ordered.

Cases considered:

R. v. Griffiths 23 Cr. App. R. 153
R. v. Blandford Justices, ex parte G (an infant)(1966) 1 All E.R. 1021

Kenneth Brown for the Appellant
Thomas Kama for the Respondent

Wood CJ: The appellant was convicted in the Magistrates’ Court (Central) on June 26, 1985 on his own plea of guilt on three counts. The first count was using a motor vehicle at night without a rear light contrary to regulations 28(3) and 49 of the Traffic Regulations Cap. 19. The second count was using an unlicensed motor vehicle on the road contrary to section 6(1) of the Traffic Act Cap. 19. The third count was using a motor vehicle on the road without a policy of insurance contrary to section 8(1) and (2) of the Motor Vehicles (Third Party Insurance) Act 1972. He was fined $10, $20 and $50 respectively on each count and disqualified from driving for a period of twelve months, presumably on the third count.

The appellant now appeals against both conviction and sentence on count 3.

His ground for appealing against conviction on count 3, in spite of his plea of guilt, is that the Magistrate failed to explain to him the provisions of s.8(3) of the Motor Vehicles (Third Party Insurance) Act 1972 and that in consequence his plea of guilt was not a proper, full and unequivocal plea. If I uphold this ground then there is no need for me to deal with the appeal against sentence and I will therefore deal with this ground of appeal first.

S.8(3) - of the Motor Vehicles (Third Party Insurance) Act 1972 reads as follows:-

“(3) A person charged with using a motor vehicle in contravention of this section shall not be convicted if he proves that the vehicle did not belong to him and was not in his possession under a contract of hiring or of loan, that he was using the vehicle in the course of his employment and that he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance as is mentioned in subsection (1).”

The wording of this subsection is not clear as it might be but it seems to be saying that anyone charged with an offence under s.8 cannot be convicted if he proves that the vehicle did not belong to him, that he was using the vehicle in the course of his employment and that he neither knew nor had reason to believe that the vehicle was uninsured. If however the vehicle was borrowed or hired the defence would not be open to the accused. However that may be the record shows that the appellant was not the owner of the vehicle and was using it in the course of his employment.

The sole question before me on this ground of appeal is not the appellant’s guilt but whether or not his plea of guilt was unequivocal. The appellant was not represented at his trial and was not aware of the defence open to him. Although it is no part of the Court’s duty to advise unrepresented accused of all their possible defences to the charge they face nonetheless in the circumstances of this case it would appear that the appellant would have pleaded not guilty to the third count had he been aware of his rights under section 8(3) of the Act. Mr Brown has cited R. v. Griffiths 23 Cr. App. R. 153 in which the Court of Appeal held that despite a plea of guilty the Court will review a conviction when there is a good defence in law. He also cited the case of R. v. Blandford Justice, ex parte G (an infant)(1966) 1 All E.R. 1021 in which Widgery J (as he then was) gave the judgment of the Court of Appeal at p. 1026 as follows:-

“where an accused, who is charged before a magistrates’ court, is not represented or is of tender age, or where for any other reason there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the court ought to defer final acceptance of a plea of guilty from the accused, until they have had a chance to learn more of the matter and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one; and if, having waited until the facts are outlined and something has been heard of what the accused has to say, the magistrates’ court find that there are elements which indicate that the accused really means a plea of “not guilty” that plea must be entered.”

On the record and if the learned Magistrate had made further enquiry I am of the opinion that a plea of “not guilty” would have been entered on count 3 of the charge sheet. I therefore set aside the conviction and sentence on count 3 and order a retrial of that count on a plea of “not guilty” before a different Magistrate.