Solo v Regina [2000] SBHC 20; HC-CRAC 089 of 2000 (12 May 2000)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 089 of 2000

JOHN SOLO

V

REGINA

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 10th May 2000
Judgment: 12th May 2000

K. H. Averre for the Appellant
DPP not present

JUDGMENT

(Kabui, J): The Appellant is Mr. John Solo presently serving a sentence term of 12 months imprisonment in the Auki Prison. He was charged with the offence of store-breaking, contrary to section 300(1) of the Penal Code Act (Cap. 26) to which he pleaded guilty in the Auki Magistrate Court on 14^th December 1999. It is clear from the Court record that the Magistrate did take into account the Appellant’s guilty plea, his family circumstances and the fact that Police had recovered most of the goods stolen by him. However, the Magistrate did express the view that any sentence to be imposed upon the Appellant must bear the element of deterrence as the Appellant had one prior conviction involving house-breaking in 1991. The Magistrate accordingly imposed a custodial sentence of 12 months upon the Appellant. The Appellant decided to appeal against both conviction and sentence. His appeal was presented and argued by Mr. Averre, the Public Solicitor for Malaita stationed at Auki. With due respect, the Director of Public Prosecutions did not appear for the Crown nor any member of his professional staff. The Notice of Hearing was by letter dated 26^th April 2000 written and sent by the Registrar of the High Court to Mr. Averre, the Public Solicitor at Auki and to the Director of Public Prosecutions in Honiara. Mr. Averre, the Public Solicitor from Auki, Malaita appeared whilst the Director of Public Prosecutions whose Office is a bare 200 yards from the High Court Building chose not to appear in Court for the Crown. No reasons were given by anyone for the absence of the Director of Public Prosecutions in this appeal. This being the case, I allowed Mr. Averre to proceed with his client’s appeal in the absence of the Director of Public Prosecutions.

As I have said, the Appellant appealed against both conviction and sentence. Mr. Averre’s point on conviction was that the facts recorded by the Magistrate and admitted by the Appellant in the Magistrate Court at Auki did not disclose the means by which the Appellant gained entry into Mr. Garo’s store at the Auki Market. In other words, there was no evidence of “breaking”. Mr. Averre pointed out that the Magistrate should have enquired in order to establish whether or not there was indeed an act of breaking committed by the Appellant on the night of 3^rd December 1999. In support of this argument, Mr. Averre cited Farasia v DPP 1985/86 SILR 84 as being the case on this point. That is to say, where the accused person is unrepresented by Counsel, it is incumbent upon the Magistrate to explain to the accused person the elements of the offence, particularly where there is a defence available to the accused person. C.J. Wood in the Fanasia case above had considered the cases of R v Blandford Justices ex parte G (an infant) [1966] 1 A.E.R. 1021 and R v Griffths Cr.App.R 153 upon which His Lordship based his conclusion.

The case of R v Blandford Justices ex part G. (an infant) cited in the Farasia case was discussed by the House of Lords in the case of S v Recorder of Manchester [1971] A.C. 481. Two of the issues to be decided by the House of Lords in that case were -

(a) whether or not a court of summary jurisdiction after having accepted a plea of guilty to the offence charged, was not entitled in law to alter that guilty plea to a plea of not guilty at any time before passing sentence;

(b) whether or not the power of a court of summary jurisdiction to alter a plea was different from the power to do so by a Court of record.

As regards (a) Lord Reid at pages 488 – 489 said,

“It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. I need only cite one early case as a rather extreme instance. In Reg. V. H Clouter and Heath (1859) 8 Cox C.C. 237, two prisoners were indicted for forgery and pleaded not guilty. At an early stage in the trial Clouter changed his plea to guilty and was convicted by the jury. Then in the evidence against Heath facts came out to show that Clouter had pleaded under a misapprehension, and he was allowed to change his plea again to not guilty, the jury’s verdict being withdrawn. This case has frequently been cited and never disapproved. It was referred to by Lord Parker C.J. in Reg. V. Cole [1965] 2 Q.B. 388, 394.”

Lord MacDermott also at page 493 said,

“Every experienced judge knows that, even in uncontested matters, the truth has a habit of emerging in bits and pieces, and that the legal ingredients of the offence charged may not be fully understood by the accused. Pleas of guilty of stealing where there has been no intention to deprive the owner permanently, or of receiving where there has been no guilty knowledge at the time of receipt are but notorious examples of what has happened and can still happen through this sort of ignorance or misunderstanding which, be it noted, may not proclaim itself when the plea is made. The risk of this is certainly not rare enough to be left out of account. Legal aid may reduce it, but it would be rash to assume that it will eliminate such mistakes entirely; and it must also be remembered in this connection that quite a number of modern statutory offences are sufficiently complex in their make-up to confuse both the lay and the learned. Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of not guilty allowed where the interests of justice so require? There is no good reason for thinking that such a course would create an administrative problem or open the door to a widespread abuse of process. As respects trials on indictment, including trials before justices at quarter sessions, the attitude of the common law on this matter has been clear for generations. Such a change may, at the discretion of the court, be allowed at any time before the case has been disposed of by sentence. On principle I see no reason why this discretionary power should be denied to courts of summary jurisdiction. It is as necessary there as elsewhere if the justices are to be free to do justice while they have seisin of the proceedings.”

In support, Lord Morris at pages 501 – 502 said,

“If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable it that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgment of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made. When, in the present case, the court, on June 20, heard the reasons for the application made to them, they felt, and rightly felt, that the proper course in the interests of justice would be to accede to it. It would be a grave defect in our law and system if there is some rule which thwarts the course which the interests of justice prompt.

If magistrates are trying a case summarily they will not have completed their duty in regard to the case until they either (a) dismiss the case or (b) find the accused guilty and deal with him on that basis. The finding of guilt may involve reaching a conclusion in regard to disputed or contested facts.”

Finally, Lord Upjohn at pages 505 –506 said,

“My Lords the rule in the High Court and at quarter sessions seems very sound and based upon common sense and justice. The court must continue to exercise its jurisdiction over the whole case until the judgment of the court; and there can be no ground in law or common sense which requires a court to become functus officio as to part of its jurisdiction, namely, the finding of guilt, during the hearing of the case.

How, then, has this division of functions come about in the case of a court of summary jurisdiction?

Unfortunately it all stems from a misunderstanding of the word “conviction” in the case of Rex v Sheridan [1937] 1 K.B. 223. The primary meaning of the word “conviction” denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times: see Hale’s Pleas of the Crown (1778), Vol. 2, Ch. 32, p. 251, and it is equally applicable in a court of summary jurisdiction (see Rex v. Harris (1797) 7 Durn. & E.238).”

The fifth Law Lord, Lord Guest agreed with Lord Reid. The agreed opinion of the five Law Lords was that the answer to (a) was yes. That is to say, a guilty plea can be altered to a plea of not guilty at any time before the passing of sentence by the Court. The five Law Lords also agreed on (b) that this rule of practice applied equally to a Court of summary jurisdiction as well as to a Court of record. But there is a difference. The point of difference here is that in this case, the Magistrate had concluded the trial having sentenced the Appellant to 12 months imprisonment. The question is what is the position as in this appeal where the Appellant pleaded guilty, admitted the facts and was sentenced to 12 months imprisonment. The Appellant failed to complain or state any matters which might have raised a doubt in the mind of the Magistrate that the Appellant might not have been guilty of the offence of store-breaking as set out in the charge sheet. From the facts on the Court record, the charge was explained to the Appellant to which his response was “understand”. His plea was recorded as “Hem true” which was an acceptance of the content of the charge against him. It was a plea of guilty. After the facts were stated by the Prosecutor, his response was “I admit the facts”. He was then convicted on the basis of his pleading guilty. The rule is that where the accused person pleads guilty to a charge against him or her and the Court has imposed the appropriate sentence, the Court cannot go back and alter the plea to that of not guilty (see Regina v Campbell, Ex parte Hoy [1953] 2 W.L.R. 578). In the words of Lord Morris in S v Recorder of Manchester cited above at page 804 “After such a disposal of a case a magistrate would be functus officio”. The same was stated by Lord Upjohn at pages 505-506 cited above. The argument therefore is that in this case, the Magistrate after having sentenced the Appellant to 12 months imprisonment can do no more. There was nothing more to be done. The Magistrate was clearly functus officio. The case is closed.

Be that as it may, Mr. Averre’s argument seemed to have gone a little further than the principle of functus officio. His point was that the facts did not demonstrate the means by which the Appellant gained entry into Mr. Garo’s store on 3^rd December 1999. In other words, on the facts, the Appellant clearly had a defence in law which the Magistrate should have recognised by asking questions of the Appellant. The defence is that there was no evidence of “breaking” in this case. That is to say, how the door to Mr. Garo’s store was opened by the Appellant was not stated in the facts before the Magistrate. The facts were too brief and skeletal in nature. The relevant facts were –

Shopowner Garo whilst in shop the door was not properly secured he attempted managed to open gained entry.

One interpretation is that the door was closed but not locked. The Appellant simply pushed it with his hand or weight and it opened and he gained entry. Another interpretation is that the door was latched but not locked. The Appellant unlatched the latch and opened the door with his hand or weight and went inside the store. The third interpretation is that the door was locked but the keys were left in the lock. The Appellant simply removed the lock and went inside the store. The recorded facts were ambiguous on the element of “breaking”. As far as the elements of breaking and entering are concerned, the offence of store-breaking under section 20 of the Larceny Act, 1916 of the United Kingdom can be proved in the same way as it is done for the offence of burglary under the same Larceny Act, 1916 above.

The element of “breaking” in burglary is stated thus on page 656 of Archbold, Criminal Pleading Evidence & Practice, Thirty-Sixth Edition, 1966 by T.R. Fitwalter Butler and Marston Garsia;

“To constitute burglary, there must be a breaking of the house, either actual or constructive. If a man leaves his doors or windows open, and another enters therein with intent to commit a felony, it is no burglary: 1 Hale 551; 3 Co. Inst. 64. So if there is an aperture in a cellar window to admit light, through which a thief enters in the night, this not burglary: R. v. Lewis, [1825] EngR 194; 2 C. & P. 628; R. v. Spriggs and Hancock, [1834] EngR 625; 1 M. & Rob. 357.”

Again at page 657, the learned authors state

“An actual breaking is, where the offender for the purpose of getting admission for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in the wall of a house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting a latch, or unlooses any other fastening to doors or windows which the owner has provided: ...”

The consequence of failing to prove the elements of “breaking” and “entering” is that the accused person may be convicted of simple larceny. (See page 670 of Archbold as cited above). Turning to the Fanasia case cited by Mr. Averre, I would say that whilst that case and those cited in the judgment of CJ Wood are not exactly the same on the facts as in this case, they are similar in that the defence disclosed by the facts in each case was not detected by the Court at the relevant time. The other common factor was that in each case, the accused person was unrepresented at the time the pleas were taken and subsequently raised by Counsel either on appeal or by way of certiorari. Clearly the Fanasia case has eroded the principle of functus officio. I dare say it creates an exception to the principle of functus officio. Put it another way, it extends the ability of a Court to alter a plea of guilty to not guilty beyond the constrict of the principle of functus officio where justice demands. CJ Wood in the Fanasia case did not go this far to say this in so many words but I think the effect of his ruling is clearly this. I am certain that the Appellant would have pleaded not guilty had he been aware of his right to plead not guilty. Clearly, he would not have known the elements of the offence of store-breaking and the amount of evidence needed to prove each element. The Magistrate after explaining the charge should have been careful to see whether or not the facts presented by the Prosecutor did support each of the elements of the offence of store-breaking under section 300(1) of the Penal Code Act. Local persons whose knowledge of the legal system in this country is lacking can often compromise their rights to a fair hearing by simply pleading guilty. As said by Lord Morris at page 50 above, the concern of the Court is to ensure as far as possible that those who are punished are in fact guilty of the charges brought against them. I think this is the bottom-line requirement expected by the community of all Magistrates and Judges. In this case, I am of the opinion that the magistrate should have asked the Appellant how he gained entry into Mr. Garo’s store or asked the Prosecutor that same question. This oversight has clearly resulted in some doubt over the proof of “breaking” in this case. This oversight is critical for the determination of guilt or innocence of the Appellant. In exercising my powers under section 293 of the Criminal Procedure Code Act (Cap. 7), I therefore allow this appeal and quash the conviction entered against the Appellant accordingly. I order that the case be remitted for retrial on a date to be fixed by the Auki Magistrate Court. I further Order that the Appellant be released from prison forthwith and be placed on bail awaiting retrial. The question of reduction of sentence automatically falls away.

This appeal does demonstrate the often difficulty faced by Principal Magistrates in the country in dealing with serious offences such as store-breaking and other offences carrying the maximum penalty of 14 years imprisonment. Always these cases are dealt with summarily by the Principal Magistrate Courts without the benefit of clearance from the Office of Director of Public Prosecutions. The result can be that the statements recorded by the Police investigating officer do not cover all the elements of the offence committed. If the Dockets are forwarded to the Director of Public Prosecution before the accused persons appear in Court any gaps in the statements of witnesses will have been filled with additional statements. Without this being done, Police Prosecutors would always face the problem of presenting defective facts when the accused person pleads guilty. Unless the Court is constantly vigilant in cases where guilty pleas are recorded, justice may be compromised where obviously a plea of not guilty should be recorded.

F.O. Kabui
Judge