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State v Tabanivalu [2002] FJHC 193; HAC0006R.2002S (21 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0006 OF 2002

STATE

-v-

TIMOCI KAUYACA TABANIVALU

Hearing: 7th May 2002
Ruling: 21st May 2002

Counsel: Ms J. Hamilton-White for State
Mr A. Wolfe for Accused

RULING

This matter was listed for sentence today. However the accused is now represented for the 1^st time and asks that the guilty plea be vacated. State counsel agrees, on the basis of the interview of the accused to the police, that he may not have understood the nature of his plea, and that he may have been prejudiced by absence of counsel at the police station and in court.

The principles governing the discretion to allow a change of plea are as follows:

1. Plea may be changed at any time up to sentence;
   
2. An equivocal plea will lead to a change although there may be other reasons to allow a change of plea;
   
3. Prejudice as a result of being unrepresented may be a ground;
   
4. The discretion must be exercised judicially.
   

Having heard both counsel, I consider that this plea should be vacated and substituted with a not guilty plea. This is because the accused who was unrepresented at the police station and in the Magistrates= Court, did not admit the offence of Rape to the police. The interview was not brought to the attention of the Magistrates= Court but it does contain a defence that he did not have sexual intercourse.

I am therefore not satisfied that the accused fully understood the significance of his plea in the Magistrates= Court. The plea is set aside. A hearing is to be conducted in the Magistrates= Court on the basis of a not guilty plea before another magistrate.

Accused is to be remanded in custody to appear in the Magistrates= Court for hearing.

Nazhat Shameem
JUDGE

At Suva
21^st May 2002