Siru v Regina [2005] SBHC 90; HCSI-CRAC 322 of 2005 (17 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal No. 322 of 2005

BEN SIRU

-v-

REGINA

Date of Hearing: 10^th August 2005.
Date of Judgment: 17^th August 2005.

M. McColm for the Crown.
C. Ashley for the Appellant.

JUDGMENT

Kabui, J.: The appellant in this appeal is Ben Siru. He was a former prison officer serving in the Rove Prison but is now an inmate there himself, following his conviction by the Magistrate’s Court sitting in Honiara on 7^th April 2005 for aiding in the escape of Edmond Sae and other inmates on 22^nd April 2003, contrary to section 126(c) of the Penal Code Act (Cap. 26), “the Code”. He was duly sentenced for eighteen months imprisonment, nine months of which were suspended for two years. According to the court record, his trial in the Magistrate’s Court had been adjourned to 7^th April 2005 on 6^th February 2005. He pleaded guilty on 7^th April 2005 and a guilty plea was entered against him by the sitting Magistrate. So the date 17^th April 2005 was incorrect, though recorded by the Magistrate. The correct date was 7^th April 2005. It follows that the date of sentencing was also incorrect. It should have been 14^th April 2005 according to the court record. Ben Siru’s letter of appeal addressed to the Chief Justice was not dated but the date of receipt by the Registrar of the High Court was 13^th June 2005, almost two months after his sentence.

The starting point in this appeal.

The starting point in this appeal is section 284(1) of the Criminal Procedure Code Act (Cap. 7), "the CPC" which states-

"...No appeal shall be allowed in the case of an accused who has pleaded guilty and has been convicted of such plea by a Magistrate’s Court, except as to the extent or legality of the sentence..."

As stated above, the Appellant had pleaded guilty in the Magistrate’s Court sitting in Honiara and duly sentenced to imprisonment for eighteen months, nine of which the Magistrate’s Court suspended for two years. The prohibition in this section appears to be based upon the position at common law that a plea of guilty may be changed to that of not guilty any time before the sentence is passed by the Court. Once a sentence has been imposed, the case is completed and the matter is regarded as being functus officio as far as the jurisdiction of the sentencing court is concerned. (See John Solo v. Regina, Criminal Appeal No. 089 of 2000 and the cases cited therein, (unreported). The principle applies to both the finding of guilt by the trial court or a plea of guilty followed by sentence. This principle however does not prevent a right of appeal against conviction and sentence created by statute. An appeal however does not lie in cases where guilt was admitted by way of pleading guilty and sentence passed by the trial court. The reason, to my mind, is simple. It does not make sense and a waste of time for a person having willingly admitted the offence for which he or she was being charged by way of pleading guilty and having been sentenced, decided to change his or her plea of guilty after sentence, by appealing the conviction. In other words, section 284(1) of the CPC cited above is the expression of that position. There is however, an exception. Where the accused was not represented by Counsel at the trial and the nature of the charge against the accused had not been adequately explained by the Magistrate so as to enable the accused to understand the charge and its nature he or she was facing or the Magistrate failed to notice that the accused had a defence in law and he or she pleaded guilty all the same, an appeal against conviction can be entertained by the High Court in the interest of justice. (See John Solo v. Regina cited above). (Also see Gua v. Regina [1990] SILR 129). In R. v. Ford [1923] All E.R. Rep 477 at 479, the Criminal Court of Appeal said-

"...The first question that arises is whether this court can entertain the appeal. A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (i) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged..."

This passage was cited with approval in R. v. Stewart [1960] VicRp 16; [1960] V.R. 106 and R. v. Phillips [1982] 1 All E.R. 245. That clearly is an exception to section 284(1) of the CPC cited above. So, section 284(1) of the CPC is not a blanket and all pervasive provision. Having said that, what then is the position in a case like this case where the appellant having been advised by his Solicitor pleaded guilty and sentenced and then appealed against his conviction? Clearly, the appellant in his appeal letter alleged being pressured and forced by his Solicitor to plead guilty. The allegation clearly falls within (i) above in the passage cited from R. v. Ford, cited above. That is, he did not intend to plead guilty to the charge against him. His appeal can therefore be heard. He was however clearly out of time in terms of section 285 of the CPC. No application had been made to enlarge time beyond fourteen days stipulated in section 285(1) of the CPC cited above. As has been said, he was out of time by almost two months.

Enlargement of time.

I raised this point with his Counsel, Mr. Ashley, who initially argued that the letter written by the Chief Justice to the Registrar dated 4^th July 2005 in which the Chief Justice treated the letter by the Appellant as an appeal to be brought up for direction hearing on 15^th July 2005 was the authority to enlarge time under the proviso to section 285 (1) of the CPC. I rejected that argument. However, Counsel formally applied instantly for enlargement of time and called the Appellant to give evidence on oath as to why I should extend time. In his evidence, he said that his lawyer, Miss Swift, visited him in prison about ten days after he had been sentenced by the Magistrate’s Court. He said that he wanted to appeal but his lawyer refused to follow his wish. He said that he was aware of the time limitation of fourteen days but because he was not assisted to appeal, he was out of time. That is really his evidence. The appellant having waived privilege, Counsel for the Crown, Mr. McColm, called Miss Swift to give evidence on oath. She said that she had advised the appellant against appeal within the fourteen days period for appeal after his sentence on the ground that he had pleaded guilty and that the sentence was within the sentencing range. No blame can be attributed to Miss Swift giving advice to her client as was expected of her as the appellant’s Solicitor. The point though is that after Miss Swift had given her advice, he continued to maintain his wish to appeal against his conviction. It took him time to communicate his wish to the Registrar of the High Court, though knowing he was out of time. He is a layman. I do not think I can blame him for being late in his appeal. He seemed to have believed strongly that he should not have pleaded guilty in the first place in the Magistrate’s Court. Should he be shut out from being heard? I thought not and granted leave to appeal out of time. Section 285(2) of the CPC is not exhaustive in its scope as to what constitutes "good cause" for enlargement of time. With hindsight, I think section 284(1) should be amended to say that where an accused person has pleaded guilty, the accused may appeal against conviction but with the leave of the court so that the court can screen the intended appeal of its merit and suitability to proceed to the hearing stage of the appeal.

The evidence from police investigation.

The first statement the appellant made about the escape of Edmond Sae was on 25^th April 2003. That statement was made in the Rove Prison. It would appear that he wrote that statement in his own hand writing. In that statement, he said that Prison Officer, Qalala, called him to go to him to assist him in the Segregation Unit and did so. He said that he was aware of the ban against him not to visit the Segregation Unit but because of shortage of staff that time, he decided to go to the Segregation Unit. He said that Edmond Sae escaped after he had left the Unit. He made another statement on 30^th September 2003 in the Rove Prison in the presence of Sergeant Ben Hampton, CID Central, RAMSI Investigations. He signed the statement. He said that Prison Officer, Qalala, had come to the gate he was guarding and he let him out. After sometime, Prison Officer, Qalala, returned and he let him through the gate. He noticed that Prison Officer, Qalala, had with him some betel nuts and smokes. He then talked with Prison Officers, Kwalagau, Wickham and Qalala and then returned to man the gate and the others also left. Prison Officer, Qalala, then returned to him and Prison Officer, Qalala, having spoken to him, he went with Prison Officer, Qalala, to the Segregation Unit. They sat in the Segregation Unit office and there, Prison Officer, Qalala, spoke with Edmond Sae. Edmond Sae then asked if he could come out and sit with them in the office. After a short talk with Prison Officer, Qalala, he told Prison Officer, Qalala, that it was alright for Edmond Sae to come out and join them in the office. Prison Officer, Qalala, then unlocked the gate and Edmond Sae and another prisoner came out and sat with them. Prison Officer, Qalala, then gave some betel nut to Edmond Sae and the other prisoner to share between them. After that, Prisoner Officer, Qalala, returned the other prisoner into custody. Then Edmond Sae said that he was not satisfied about his remand because other police officers had also been involved in the killing of Sir Frederick Soaki and that he was going to lose his case and the other police who had also been involved were destroying him. Prison Officer, Qalala, acknowledged Edmond Sae’s remarks by saying, "oh, ok." Then the appellant spoke to Edmond Sae in their Malaita dialect. In that conversation Edmond Sae told him to leave the office in which they were sitting as he was going to attack Prison Officer, Qalala, and would escape. He told Edmond Sae not to do it as he would lose his job as a Prison Officer. Edmond Sae then told him to leave the office and return to his post as he was going to attack as he had already told him. The appellant said he was afraid of Edmond Sae and left the office. He returned to the gate at which he had been posted. About 11pm, he heard the alarm being sounded and immediately ran to the Segregation Unit and soon learned that Edmond Sae and other prisoners had escaped. Prison Officer, Qalala, made a statement on 25^th November 2003 in which he confirmed part of the Appellant’s story as to what transpired in the Segregation Unit charge office between the three men, being Prison Officers, Qalala, Siru and Edmond Sae. However, Prison Officer, Qalala, said it was the appellant who told him to unlock the gate for Edmond Sae to come out of his cell to sit with them. He confirmed that the appellant spoke to Edmond Sae in their Malaita dialect. He did not know what the conversation was about. After that he let the appellant out of the Segregation Unit. On 14^th October 2004, the appellant was interviewed by Sergeant Adrian Morton in the presence of Inspector Donne in the Office of Professional Standards and Internal Investigations. He was duly cautioned by Sergeant Adrian Morton. In that interview, he was asked to confirm the content of his previous statement made on 30^th September 2003 and he did so willingly. Also, he was asked additional supplementary questions which he answered willingly. He again confirmed that on the night of the prison escape, he was manning the main prison gate. He said only five prison officers were on duty that night himself included. He agreed that he was banned from the Segregation Unit. He denied having the keys to the Segregation Unit. He said he went to the Segregation Unit because, Prison Officer, Qalala, wanted his company and not because he wanted to talk with Edmond Sae. He confirmed that after Edmond Sae had asked to be let out into the office, he spoke to Prison Officer, Qalala, and then he told Prison Officer, Qalala, to let Edmond Sae come out to join them in the office and Prison Officer, Qalala, accordingly unlocked the gate for Edmond Sae to come out. On being questioned further, he denied it. I think that at this point, he was confused. He confirmed talking to Edmond Sae in the office in the presence of Prison Officer, Qalala. He confirmed being told by Edmond Sae that he (Edmond Sae) was going to attack Prison Officer, Qalala, and would escape and his own response to Edmond Sae’s remarks. He admitted he did not tell Prison Officer, Qalala or any other prison officer that Edmond Sae was going to attack Prison Officer, Qalala, and would escape from custody. He denied setting off the alarm when he returned to his post. He said it was Prison Officer, Wickham, who set off the alarm. He denied knowing about any escape plan for Edmond Sae or actually helping him to escape. He said that he knew Edmond Sae was going to escape but he did nothing to stop him from doing it. He admitted that he knew that it was his duty to stop Edmond Sae from escaping but could not explain why he failed his duty than saying he was scared of him. Section 126(c) of the Penal Code Act (Cap. 26) "the Code" under which he was charged carries a maximum penalty of seven years imprisonment for aiding a prisoner in escaping or attempting to escape from lawful custody. Aiding by an act of omission is clearly covered by section 21 of the Code.

The question of double jeopardy.

Section 20 of the Code covers the point that no person should be punished twice for the same offence. It is not disputed that the Appellant had been punished for breaching the order banning him from the Segregation Unit. He pleaded guilty to that charge and was fined $22.00 to be deducted for three pay periods from his salary. There is no evidence showing that he had been interdicted under the Prison Regulations, if any, for aiding the escape of Edmond Sae or charged under section 53 of the Prisons Act for the same offence and punished accordingly. The question of double jeopardy does not therefore arise. If he was to be charged under the Prisons Act, he would have been charged under section 53. It did not happen.

The allegation of being pressured or forced to plead guilty against the wish of the Appellant

In R v. Peace [1976] Crim. L.R. 119, the appellant had pleaded guilty to arson and conspiracy and was sentenced accordingly. He had made two confessions to the police. Later, he was pardoned. He therefore wished to have his conviction set aside. He said his confessions were not true because he made them to get out of police custody and to seek legal advice to establish his innocence. He said he intended to plead not guilty to the day of his trial when he saw leading counsel. He said after speaking to counsel, he suffered from anxiety and confusion. He said he had the impression that counsel was not familiar with his case and that being so, thought he was guilty and would not represent him satisfactorily on a plea of not guilty. He said that counsel had advised him that if he pleaded guilty, he was likely to be sentenced to Borstal but if not, he might be sentenced to three or four year’s imprisonment, and if he called his fiancée to support his alibi, she could be prosecuted for perjury. He said he had little time to make up his mind to plead guilty as the lesser of the two evils. He said he told his fiancée about it, but although she was not happy about it, he decided to plead guilty. The Court of Appeal refused the appellant’s application because an ill advised plea of guilty was not an irregularity. The appellant must show that the plea of guilty was a nullity. The Court said that "...(w)hat had to be shown was that the apparent plea of guilty was no plea at all because it was made under pressure or threats or the like in circumstances in which the defendant had no free choice but was driven to adopt a certain course whether he liked or not..."

An example was R v. Terry Michael Inns (1975) 60 Cr. App. R. 231 where the trial judge had put pressure on counsel to change his client’s intended plea of not guilty to that of guilty. This is not the case here.

The agreed facts before the Magistrate’s Court.

The facts presented by the Crown in the Magistrate’s Court were that on 22^nd April 2003, the appellant was on duty at the main prison gate. Later in the evening, he went to Prison Officer, Qalala, and into the charge office of the Segregation Unit. There, Prison Officer, Qalala, gave betel nut and smoke to Edmond Sae. Then Edmond Sae asked if he could be let out of his cell to join them in the office in which they were sitting. After a brief talk between Prison Officer, Qalala, and the appellant, the appellant told Prison Officer, Qalala, to let Edmond Sae out to join them in the office. Thereupon, Prison Officer, Qalala, unlocked the cell and Edmond Sae and another inmate came out of their cell and sat with them and chewed betel nut together. A little later, the other inmate returned to his cell. The appellant then spoke to Edmond Sae in their native language during which Edmond Sae told the appellant to return to his post for he would attack Prison Officer, Qalala, and would escape. The appellant then returned to his post but told no one about Edmond Sae’s intention to attack Prison Officer, Qalala, and would escape. Edmond Sae did escape from Rove Prison that same night after the appellant left him and Prison Officer, Qalala, in the charge office in the Segregation Unit. This version of facts was accepted by Counsel for the appellant, Miss Swift as being correct.

The ground of appeal.

In his letter of appeal, the appellant alleged pressure and threats being used by his Solicitor to change his plea of not guilty to a plea of guilty. He alleged that his Solicitor strongly advised him that if he did not plead guilty, he could face a sentence of between five to seven years imprisonment. He said that his Solicitor further advised that if he pleaded guilty, he could be sentenced for a few months. As has been said, the trial in the Magistrate’s Court had been adjourned to 7^th April 2003. The appellant decided to plead guilty on that date on the instruction of his Solicitor. The charge had been put to him in English and explained in Pidgin English by an interpreter. The appellant then admitted the charge. The facts were read out and his Solicitor confirmed them as being correct. A plea of guilty was then entered against him. The matter was then adjourned for sentence to a later date. Nowhere did the appellant recite the details of his complaint against his Solicitor. There is no evidence as to the details of what transpired between him and his Solicitor to indicate the nature of the alleged pressure and threats used upon him by his Solicitor and to what extent such pressure and threats had been used against him so as to make his plea of guilty a nullity. It is the duty of his Solicitor to advise him strongly as to his chances of being convicted if the matter went to trial than pleading guilty on the facts. Such an advice would be based on the facts which were against him, including his own admission of guilt. Clearly, he admitted under caution that he failed to forewarn other prison officers of the fact that Edmond Sae was to attack Prison Officer, Qalala, and would escape. That omission on his part directly led to the escape of Edmond Sae taking place that same night. He was the only one who possessed that information communicated to him by Edmond Sae in their own Malaita dialect and failed to pass it on other prison officers.

Conclusion.

He failed to say why he did not change his Solicitor if it was the case that he was being pressured and threatened to plead guilty by Miss Swift. He is an adult and a male person. Certainly, he was able to decline any advice by Miss Swift if he thought she was unduly overriding his instructions to the contrary. He has not said why he did not do that in his case. It is of no use complaining after the event by making general allegations without substance. He alleged that after his conviction and sentence, his Solicitor advised him against appealing against his conviction and sentence. The fact that he had been sentenced to eighteen months imprisonment with nine months of that sentence suspended was not a bad result taking into account the serious nature of the offence with which he had been charged which carries a maximum penalty of seven years imprisonment. His guilty plea was consistent with the facts. I have come to the conclusion that the appellant has failed to make out a case for treating his guilty plea a nullity. His appeal is dismissed. I order accordingly.

F.O. Kabui
Puisne Judge