Tobo v Commissioner of Police [1993] SBHC 45; HC-CRC 017 of 1992 (24 February 1993)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 17 of 1992

RACHEL TOBO

-v-

COMMISSIONER OF POLICE

High Court of Solomon Islands
(Muria ACJ)

Hearing: 23 February 1993
Judgment: 24 February 1993

P. Lavery for Appellant
J. Faga for the Respondent

MURIA ACJ: The Appellant together with another accused were charged with Affray. The Appellant had also been charged with Criminal Trespass. Before the Magistrate's Court on 22 May 1992 both pleaded guilty to all the charges. They were not legally represented in court.

By her Notice of Appeal the appellant raised two grounds.

1. The Appellant was denied an opportunity to obtain legal advise before a plea was taken
   
2. The Appellant's plea of guilty was not investigated to ensure it was a true plea to an offence and not merely agreement to the statement that the Appellant had been in a fight without consideration of a defence of self-defence or provocation.
   

Counsel for the Respondent conceded the first ground of appeal. I shall say something about such concession later in this judgement.

Mr. Lavery, argued that the Police had the habit of bringing the cases before the Magistrate's Court to be dealt with at short notices. Such a practice, Mr. Lavery said, had the effect of depriving the accused, such as the appellant here, of the opportunity of obtaining legal advice before pleading to offences brought against her.

The law requires that when an accused person is brought before the court charged with an offence, the substance of the charge must be put to the accused person and that the accused person must be asked whether he admits or denies the truth of the charge. If the accused person admits the charge, the court shall convict him and pass sentence on him "unless there shall appear to it sufficient cause to the contrary." Where the accused person denies the charge the court must proceed and hear the evidence. That basically is what section 194, Criminal Procedure Code requires.

While the courts must be mindful of the rights of an unrepresented accused person brought before it, charge with an offence, the court's duty as envisaged under section 194, Criminal Procedure Code and section 10 of the Constitution is to afford the accused person a fair hearing. It is not the court's duty to ensure that an accused person is accorded legal aid. The function of providing legal aid, advice and assistance is to be performed by the Public Solicitor as provided under section 92(4) of the Constitution. The court must not, however, deny the accused person the opportunity to have access to legal aid, advice or assistance.

Was there any denial of the opportunity to obtain legal advice in this case? Apart from what Mr. Lavery now submitted to this court, there is absolutely no material before the court to support such a contention. Counsel's assertion from the bar table cannot be the basis for such allegation. There must be evidence from the record or evidence called before this court, with leave, to show the basis for the suggestion that the accused had been deprived of the opportunity to obtain legal advice before she took the pleas. As such I fail to see the basis for the concession made by Mr. Faga that the appellant was denied the opportunity to obtain legal advice. Counsel should never readily make concession unless there is basis for doing so. Counsel is under duty to properly assist the court in administering justice and not to take short-cuts by baseless concessions.

Despite that concession by counsel, I find ground one to be without substance and therefore fails.

As to ground two, Mr. Lavery contended that the Magistrate should have some doubt about the guilt of the appellant because, although she pleaded guilty she raised a possible defence in her mitigation when she said that she did not intend to fight. Mr. Lavery further argued that the learned Magistrate had not investigated into the accused's guilty plea to see if it was a true plea or not and by not doing so the Magistrate failed to consider the defences of self-defence or provocation.

The court has the power under section 194(2), Criminal Procedure Code to not pass sentence upon an accused person who pleaded guilty to a charge. That power may be exercised by the court where "there shall appear to it sufficient cause to the contrary." One such sufficient cause must be where the accused person pleaded guilty but the accused raised a possible defence in law during mitigation.

In such a situation the court must enter a plea of not guilty and the case must proceed as a contested hearing.

It is, however, another thing to insist that upon a plea of guilty made by an accused person, the court should investigate that plea to ensure that it was the correct plea to the offence. I do not think the court should engage itself with such investigatory course of action. All that it is incumbent on the court to do when a person is brought before it charged with an offence, is to put the charge to the accused person, explain the substance of the charge to him and having satisfied itself that the accused understands the charge, ask the accused person if he or she admits the charge.

In the present case, the Magistrate read and explained the charges to the appellant and her co-accused. Both the appellant and her co-accused understood the charges. Then the pleas were taken which, also on the record, shows that the appellant pleaded guilty to both the charges of Affray and Criminal Trespass. Her co-accused pleaded guilty to the Affray charge. The facts were then read out and the record shows that both the appellant and her co-accused agreed with the facts of the case as given to the court. The Magistrate then formally entered the guilty pleas against each of the accused on their own admissions. Those actions taken by the Magistrate were entirely in accordance with the law and no complaint can be made against those actions.

In mitigation the appellant stated that she did not intend to fight and that her coming to the compound of Esther Rina Nagu was to ask for her clothes from her niece. The Magistrate then, was of the view that the proper cause of action to take in the light of the appellant's explanation was to enter a Not Guilty plea on the charge of Criminal Trespass. He then proceeded and sentenced the appellant on the Affray charge only. On the basis of the elements of the charge of Criminal trespass brought against the appellant, the Magistrate took the correct action. The appellant was charged with entering upon the premises of Esther Rina Naqu "with intent to annoy" her. When the appellant said in mitigation that she did not intend to fight and that she went to Esther Rina Naqu's place to ask for her clothes, the Magistrate was correct in treating that as raising a defence to the Criminal Trespass charge.

The argument by counsel for the appellant that the explanation raised by the appellant in mitigation should be taken by the court as raising a defence to the Affray charge cannot be accepted. The offence of Affray is committed when a person takes part in a fight in a public place, whether he intends to fight or not is irrelevant. Here, the appellant agreed she took part in a fight in a public place. Whether or not she intended to fight is not to the point. She took part and the offence, thus, had been committed.

On the facts as disclosed before the Magistrate no plausible defence had been raised by the appellant to the charge of Affray. The Magistrate had taken the correct course of action throughout the trial of the appellant and her co-accused. In so doing the Magistrate, was correct in convicting the appellant of the offence of Affray.

This court sees no valid reasons to disturb the Magistrate's decision and so this appeal must be dismissed.

(G.J.B. Muria)
ACTING CHIEF JUSTICE