High Court of Fiji

10. In my view, the power vested with the High Court to call for a record of any criminal proceedings before any Magistrates Court could be exercised ex mero motu or at the instance of a party. The use of the word ‘may’ in section 260(1) of the Criminal Procedure Act indicates that the High Court is granted with the discretion to call for such record under the said section. However, if the High Court receives a report under the hand of the Chief Justice which requests a particular record to be called, there is no discretion and the High Court shall call for that record exercising the power vested in terms of the said section 260(1).
    
11. It is pertinent to note that the Magistrates Court is also vested with the power to call and examine any criminal proceedings before a court of a class inferior to the court by virtue of section 261(1) of the Criminal Procedure Act, which is similar to the power vested with the High Court in relation to the criminal proceedings before the Magistrates Court, by virtue of section 260(1).
    
12. Section 262 of the Criminal Procedure Act provides that the power of revision of the High Court can be exercised on three occasions. They are;
    
    1. In the case of any proceedings in a Magistrates Court the record of which has been called for [Section 260(1)]; or
       
    2. [In the case of any proceedings in a Magistrates Court the record of] which has been reported for orders [Section 260(2)]; or
       
    100. [In the case of any proceedings in a Magistrates Court the record of] which otherwise comes to its knowledge.
         
13. Section 262(5) of the Criminal Procedure Act provides that no proceeding by way of revision shall be entertained at the instance of the party who could have appealed where an appeal lies from any finding, sentence or order. Since an appeal cannot be brought against a conviction entered on a plea of guilty in terms of section 247 of the Criminal Procedure Act, section 260(5) is not a bar for an accused who claims that he had been convicted on an equivocal plea of guilty to bring proceedings by way of revision under section 260(1) of the Criminal Procedure Act.
    
14. The revisionary jurisdiction is a discretionary remedy and unlike on appeal, a party does not have a right to have issues adjudicated by the court. Moreover, unlike appellate jurisdiction, revisionary jurisdiction is limited to examining two issues as provided under section 260(1) of the Criminal Procedure Act. They are;

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court.

15. Equivocality of a plea is usually challenged based on errors apparent on the face of the record (the summary of facts does not reflect the elements of the offence, proper procedure was not followed when recording the plea, or violation of the rules of natural justice) and involves questions of legality, jurisdiction and/or procedural impropriety. Such issues should in fact be adjudicated under revisionary jurisdiction as opposed to appellate jurisdiction.
    
16. In the case at hand, after the appeal against the conviction preferred by the appellant was dismissed for want of jurisdiction, an amended petition of appeal (against the sentence) was filed by the Legal Aid Commission on behalf of the appellant, raising the following grounds of appeal;
    
    1. That the Learned Magistrate had acted in wrong principle.
    2. That the Learned Magistrate erred in law and in fact when he considered extraneous factors to guide him when sentencing.
    3. The Learned Magistrate had not taken into relevant factors when sentencing.
       
17. However, when I went through the (certified copy of the) Magistrates Court record before the hearing, I noted that the allegation on the first count of theft [section 291 of the Crimes Act] according to the particulars of offence is that the appellant stole 29 cheque leaves belonging to one Shivangni Narayan Lal, and the allegation on the second count of causing a loss [section 324 of the Crimes Act] is causing a loss of $7565 to Pacific Auto Traders. According to the summary of facts said to have been admitted by the appellant (“summary of facts”), the cheque leaves relevant to the first count belongs to Pacific Auto Traders.
    
18. The summary of facts reads thus;
    

Between 3^rd day of May, 2012 and 30^th day of January 2014 at Nausori Iaz Ali Dean (Accused) 44 years, shop keeper of Tavakubu, Lautoka used 5 x Cheque leafs belonging to Pacific Auto Traders and cost a loss of $7565.00. The above Cheque was from BSP Bank, account number 0008681446.

Between 21^st day of November. 2017 and 23^rd day of November, 2017 (Accused) bought the following items using the said Cheque:

1. 4 x N70Z battery valued $1,050.00
2. Engine Oil valued $590.00
3. Engine Oil valued and 2 x NS60 battery valued $580.00
4. 4 x NS40 battery, 10 x 4 litres ATF engine oil valued $2,625.00
5. 5 x NS40 battery, 7 x N70Z battery, 10 x 15W40 engine oil and 2 x Head lamp total value of $2,720.00
   

Later on the 27^th day of November, 2017 (PW -2) was informed by BSP Bank that the account of Sandwich Quickies was closed and not to receive that Cheque any more.

Matter was reported and the accused was caution interviewed whereby he admitted to the allegation of using the Cheque. Accused was arrested in Sigatoka whereby the Cheque butts was found with him and later on the Accused was charged for the offence of Causing Loss Contrary to Section 324 (1) of the Crimes Act of 2009.

19. Therefore, it is clear that either the particulars of the first count to which the appellant had pleaded not guilty are incorrect or the summary of facts which the appellant is said to have admitted contains incorrect facts. I was also troubled by the reason for the appellant to plead not guilty to the first count where the allegation is stealing 29 cheque leaves worth $2.90, but to plead guilty to the second count where the allegation is that he caused a loss of $7565 by using 5 of those 29 cheque leaves that he had allegedly stolen according to the first count.
    
20. When this issue was raised before commencing the hearing on 09/06/20, both counsel did not have a clear answer, but the explanation provided by the appellant confirmed that the summary of facts in this case contains incorrect facts and it does not provide a truthful account of the circumstances relevant to the allegation against the appellant.
    
21. Given that it had come to my knowledge that the plea was equivocal based on what I have observed on the face of the record and for the reason that the trial in relation to the first count is yet to commence, I considered it appropriate to invoke the revisionary jurisdiction of this court in terms of section 260(1) read with section 262(1) of the Criminal Procedure Act to set aside the conviction entered against the appellant on the second count along with the ensuing sentence, so that the Magistrates Court can deal with the second count afresh together with the first count. Both counsel agreed with this course of action and in addition the counsel for the respondent further said that she will take steps to look into the charges.
    
22. This case highlights the need for the prosecutors to be cautious in drafting the summary of facts and also for the Learned Magistrates to carefully assess the summary of facts and the chargesheet before entering a conviction on a plea of guilty. Especially when it comes to summary of facts drafted by a police prosecutor, the Learned Magistrates should be mindful of the possibility of the prosecutor miscomprehending the facts of the case and also the possibility of the accused failing to notice the inaccuracies in the summary of facts when the summary of facts are read in court.
    
23. Moreover, in a situation like in this case where there are more than one charge which are connected and the accused had pleaded guilty to one or more charges but not all where the court has to proceed to trial in respect of the contested charges, the Learned Magistrates should be mindful of the possibility for inconsistencies to surface between the summary of facts agreed to by the accused and the facts that are later proved in relation to the contested charges, for the same reason mentioned above.
    
24. Given the decision to set aside the sentence for the reasons mentioned above, this appeal should be dismissed.
    

Orders of the Court;

1. The appeal is dismissed;
2. The conviction entered on the second count against the appellant, in Nausori Magistrates Court Criminal Case No. 747 of 2017 and the ensuing sentence are set aside; and
3. The Learned Magistrate handling the aforementioned case is directed to proceed in relation to the second count afresh along with the first count.
   

Vinsent S. Perera
JUDGE

Solicitors;
Legal Aid Commission for the Accused

Office of the Director of Public Prosecutions for the State