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Bhan v State [2015] FJHC 639; HAA14.2015 (2 September 2015)

THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 14 OF 2015

EDWIN BHAN

V

STATE

Counsel : Mr. Feizal Haniff for the Appellant
: Mr.Yogesh Prasad for the State

Hearing : 21 August 2015
Judgment : 2 September 2015

JUDGMENT

[1] The Appellant invokes appellate jurisdiction of this Court to set aside the Ruling of the Magistrates Court at Nausori in Criminal Case No. 611 of 2014 on 15th May 2015 refusing to vacate his plea of guilty, on the basis of involuntariness.

[2] Upon perusal of the original case record, it was revealed that the Appellant had pleaded guilty to counts of Assault Causing Actual Bodily Harm, contrary to Section 275 and Criminal Intimidation, contrary to Section 375(1)(a)(iv) of the Crimes Decree, on 20th January 2015. Sentencing of the Appellant was put off to 9th of February 2015.

[3] On 9th of February 2015, the Appellant made verbal application to vacate his plea and was directed to tender a written application. On 26th February 2015, the Appellant made a written application, supported by an affidavit setting out the circumstances under which he had pleaded guilty to the charges, and sought his plea be vacated. The prosecution informed Court on 25th March 2015, that it had no objections to the application of the Appellant.

[4] The Magistrates Court, in delivering its impugned ruling proceeded to consider the Appellant's application. In doing so, the Magistrates Court; noted "despite the prosecution not objecting to the application" and held that " ... this Court finds that this discretion to allow change of plea needs to be exercised judiciously after considering all the relevant factors".

[5] Having considered the circumstances as averred by the Appellant in his affidavit and the case record, the Magistrates Court proceeded to dismiss his application and thereafter sentence him.

[6] When this matter was taken up before this Court for hearing, the Counsel for the Appellant invited this Court to consider the written submissions tendered by the DPP on behalf of the Respondent where it is stated that;

"With the common law position clearer on the issue that an accused person pleading guilty voluntarily without any undue influence, State concedes that the appellant was under the influence of his previous counsel to plead guilty in order to bring the matter to finality as it was a domestic case. Based on this, State concedes that the plea of guilty is appears to be equivocal and in fairness to the appellant, the guilty plea should be set aside and the matter to start afresh in Magistrates Court."

[7] Since the DPP conceded that the plea of guilt recorded by the Magistrates Court as an involuntary plea, the ensuing conviction and the sentence ought to be set aside and the matter should be remitted back before a different Magistrate to take the plea of the Appellant and to proceed along, according to law.

[8] However, before I proceed to pronounce the proceedings before the Magistrates Court as a nullity, it might be better to briefly refer to a conceptual error of the Magistrates Court.

[9] In the ruling of the Magistrates Court and in particular, the paragraph 6 reads thus;

"This Court only proceeded to convict MrBhan after finding the plea was unequivocal."

[10] The judgment of the Court of Appeal in Samy v State[ 2012] FJCA 3, recognised the following two categories under which a plea could be withdrawn;

"... there are small number of cases thrown up by the criminal law where because of ambiguity as to his plea or involuntariness of the accused." (emphasis added)

[11] Their Lordships, in pronouncing the judgment of the Court of Appeal in the said appeal, reproduced following paragraph D12.94 from 20th Edition of Blackstone;

" A plea of guilty must be entered voluntarily. If, at the time he pleaded, the accused was subject to such pressure that he did not genuinely have a free choice between 'guilty' and 'not guilty' his plea is a nullity (Turner [1970] 2 QB 321). On appeal, the Court of Appeal will have the same options as it has when a plea is adjudged ambiguous, namely that it must quash the conviction and sentence but will be able, in its discretion, to issue a writ of venire de novo for a retrial as the original proceedings constitute a mistrial."

[12] In Bulivou v State [2014] FJCA 215, the Court of Appeal, having again reproduced the above paragraph from Blackstone, observed thus;

"In such circumstances, the only way to assess and determine whether the plea of guilty can stand as a voluntary plea is by examining the record of the proceedings in the High Court ...."

[13] It must be noted that the Court of Appeal confined material contained only in the case record, in its effort to determine the validity of the challenge mounted by the Appellant in that matter on his plea.

[14] The test to be used in determining whether a plea of guilt is voluntary or not has been laid down by the apex Court, in Ali v State [2012] FJSC 2 as;

"... such pressure that he did not genuinely have a free choice between 'guilty' and 'not guilty'.

[15] Applying these legal principles to the instant appeal does not arise in view of the DPP's consistent stance of conceding to the grievance of the Appellant both here and below. The Appellant is entitled to the concession granted by the DPP.

[16] In coming back to the ruling of the Magistrates Court, it is observed by this Court that the Magistrates Court considered only the question of whether the plea was unequivocal. Thus, it had deprived itself of the opportunity to consider the validity of the complaint of the Appellant that his plea was involuntary as it was due to the influence and the insistence of his Counsel. Since that was the main thrust of the Appellant's application, the failure of the Court to consider his grievance had deprived him of an opportunity to have his plea vacated.

[17] This Court, deliberately refrains itself from making a finding whether the Appellant was pressurised by his Counsel who represented him at that stage, as he is not given an opportunity to be heard. Without affording the Counsel concern, an opportunity to place his observations on the accusations leveled at him by the Appellant in his affidavit, it would be unreasonable to come to a finding on this issue.

[18] However, what is important is that it had escaped the attention of the Magistrates Court to consider the application of the Appellant to satisfy itself whether the Appellant pleaded guilty involuntarily and had limited its consideration only to the issue whether the plea was unequivocal or not.

[19] In view of the foregoing, this Court is of the view that the Magistrates Court fell into error when it refused the Appellant's application on an irrelevant basis.

[20] Therefore, the ruling of the Magistrates Court at Nausori, in Criminal Case No. 611 of 2014 on 15th May 2015 is hereby set aside by this Court. The conviction and the sentence of the Appellant in the said case are also set aside. Further, this Court orders that the plea of the Appellant be taken before another Magistrate and to proceed with the matter thereafter, according to law.

Achala Wengappuli
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Haniff Tuitoga