IN THE HIGH COURT OF FIJI
AT LAUTOKA 
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 16 OF 2021

BETWEEN		:	ETUATE RULADE SUGUTURAGA
									
										APPELLANT
A N D			:	THE STATE

										RESPONDENT

Counsel			:	Appellant in person.
					Mr. J. Nasa for the Respondent.  

Date of Hearing		:	30 December, 2021
Date of Judgment	:	18 January, 2022

__________________________________________________________________________                                        JUDGMENT
____________________________________________________________________________

BACKGROUND INFORMATION 

1.	The appellant was charged with four counts of obtaining financial advantage by deception contrary to section 318 of the Crimes Act, 2009. It was alleged that the appellant on four different occasions by deception, dishonestly obtained financial advantage of $1,500.00 from the victim.
2.	In the Magistrate’s Court after numerous adjournments on 21st January, 2020 the appellant pleaded not guilty to all the counts. On 26th February, 2021 the appellant informed the court that he was willing to take a progressive approach. When the charges were again put to the appellant he pleaded guilty to all the counts. The appellant also admitted the summary of facts read to him.

3.	The brief summary of facts is as follows:

	The appellant and the victim were known to each other, on 1st April 2019 both met at a restaurant in Namaka, the victim told the appellant he had a pending case in court.

	The appellant then told the victim he was an employee of a lawyer and he will be able to assist the victim with his court case. The appellant told the victim to pay $8,000.00.

	The victim paid $1,000.00 on the same day and was given a receipt. Thereafter on 6th May, 2019 the appellant approached the victim and sought another $250.00 which was given to him by the victim.  On 8th May, 2019 the victim went to the appellant’s office to check on the progress of his case and then gave another $150.00. On 10th May, 2019 the victim paid another $100.00 to the appellant.

	On 15th May, 2019 the appellant called the victim and told him to attend to his court case on 24th May which the victim did only to find out that there was no case for him in court.  On 29th May, the appellant called the victim and stated that his case had been terminated and for the victim to pick the relevant letter from the appellant. The victim picked the letter from the appellant and discovered that the letter had a wrong case number. 

The victim realized the appellant was lying and reported the matter to the police.  The appellant was arrested, caution interview and charged.
	
4.	After changing his plea the appellant mitigated and on 12th March, 2021 the court upon being satisfied that the appellant had entered an unequivocal plea found the appellant guilty and convicted him as charged. The appellant was sentenced to 2 years, 3 months and 2 weeks imprisonment with a non-parole period of 16 months to be served.

5.	The appellant aggrieved by the conviction filed an appeal in this court via his amended grounds of appeal as follows:

(a)	The summary of facts did not disclose the offences the appellant was charged with;
(b)	The conviction is not safe since the learned Magistrate did not consider the unrepresented status of the appellant and failed to follow the guidelines in Singh vs. State, criminal appeal no. 079 of 2000 before the plea was taken.
(c)	The right to counsel was continuously denied and ignored by the learned Magistrate resulting in a substantial miscarriage of justice.

LEAVE TO ADDUCE FRESH AND/OR FURTHER EVIDENCE

6.	Before the substantive appeal against conviction could be heard the appellant informed the court that he wished to adduce fresh evidence as per his notice of fresh evidence dated 23rd November, 2021. The notice was supported by the affidavit of Lemeki Vulimaigiladi sworn on 3rd December, 2021.

7.	The deponent Lemeki Vulimaigiladi in his affidavit states that he is the victim in the matter which led to the conviction and sentence of the appellant.  Lemeki mentioned that even though he had lodged a police report against the appellant he did not wish to proceed with his complaint. Unfortunately, he was unable to file his withdrawal of complaint because he was occupied with his work and was busy preparing for his hearing matter in the High Court. The deponent further states that he is withdrawing his complaint against the appellant and he wishes to have the proceedings terminated.    

8.	The prosecution did not file any affidavit in reply but relied on the submissions of the state counsel.

LAW

9.	In the case of Inoke Cumutanavanua v The State (2002) FLR 181, HAA 86 of 2001 (28 March, 2002) Shameem J. had stated the principles that must be considered in an application to adduce further or additional evidence on appeal:

a)	Whether the evidence is relevant to the appeal;
b)	Whether the evidence is credible and admissible; and
c)	Whether there was a good reason for the failure to adduce the evidence at the lower court.

DETERMINATION

10.	The application to adduce further or fresh evidence is not relevant to the substantive appeal since it does not take the issues raised in the appeal any further.  The victim’s intention to withdraw his complaint at this appeal stage does not support the appellant, his complaint has been determined by the court at first instance. In any event a victim in a criminal proceeding is only a witness he or she does not dictate the court proceedings.  Had the victim wanted to withdraw his complaint he should have indicated the same to the lower court.  

11.	The fact that the appellant had pleaded guilty invalidates any intention of the victim to withdraw his complaint now.  From the affidavit of Lemeki it appears to me that the appellant was aware of the victim’s intention to withdraw the police report yet he went ahead to plead guilty. At paragraph 5, Lemeki states the above in the following words:

	“THAT sometimes after lodging the report at the Namaka Police Station and before ETUATE RULADE SUGUTURAGA got arrested. I did [approach] him again at his residence at 01 Ram Deo Street in Martintar, Nadi and informed him that I intend to [withdraw] the report again.”  
	
 12.	It is obvious to me from the documents before this court that the victim and the appellant are at the Corrections Centre and they are conniving to ensure that the appellant somehow is able to get a favourable outcome in his appeal. Finally, the appellant pleaded guilty after a considerable delay from his not guilty plea hence he had more than enough time to decide what he actually wanted to do. 

13.	The application to adduce further fresh evidence is an afterthought which is without any merits and is therefore refused. 

SUBSTANTIVE APPEAL

GROUND ONE

The summary of facts did not disclose the offences the appellant was charged with.
14.	The appellant argues that the summary of facts was a narration of the conversation between him and the victim which fails to establish the element of deception and dishonesty on his part.

15.	The appellant admits that his identity and obtaining money was not in dispute.

LAW

16.	Section 318 of the Crimes Act states:
“A person commits a summary offence if he or she, by a deception, dishonestly obtains a financial advantage from another person”.

17.	The elements of the above offence is as follows:
(a)	The accused;
(b)	By a deception;
(c)	Dishonestly obtained a financial advantage;
(d)	From the victim.

18.	The word deception is defined in section 316 of the Crimes Act as follows:

“An intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:
(a)	a deception as to the intentions of the person using the deception or any other person; and 
(b)	conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do”.

19.	A perusal of the summary of facts mentions that when the appellant came to know that the victim had an ongoing case in court he told the victim that he was working for a lawyer and he can help with the case. The appellant told the victim to pay him $8,000.00 and on the same day the appellant received $1,000.00. 

20.	After the appellant took the money from the victim he did not do anything to help the victim.  In the meantime, the appellant continued to accept money from the victim. When the victim started following up on what was happening to his case, the appellant finally informed the victim that his matter had been terminated in court. The appellant then gave a letter of confirmation in respect of the above with a wrong case number written.

21.	In view of the above, the appellant had deceived the victim into believing that he could help him with his case and had dishonestly obtained money from the victim.  The summary of facts in its entirety satisfied all the elements of the offending.  

22.	This ground of appeal fails.

GROUND TWO

The conviction is not safe since the learned Magistrate did not consider the unrepresented status of the appellant and failed to follow the guidelines in Singh v State, Criminal appeal no. 079 of 2000 before the plea was taken.

23.	The appellant argues that the learned Magistrate had not given him the right to defend himself or to instruct a lawyer of his choice or if he wished to apply for legal aid assistance.

24.	The appellant strongly argues that the guidelines in Suren Singh and others v the State, HAA 079 of 2000 (26 October, 2000) was not complied with therefore the conviction was not safe.

25.	The appellant first appeared at the Magistrate’s Court, Nadi on 1st July 2019, on this date the charges were read, explained and understood by the appellant in his preferred language which was English.

26.	The right to legal representation was put to the appellant and he had opted to pay for a private lawyer. On the same day after receiving disclosures the appellant had asked for his police record.  The matter was adjourned to 8th July, 2019 for plea.

27.	After 11 adjournments mostly because the appellant was not present in court on 21st January, 2020 the appellant pleaded not guilty to all the counts. The matter was adjourned to 11th November, 2021 for trial.  Again after 9 adjournments mostly due to the absence of the appellant the matter was adjourned to 26th February, 2021.

28.	On this date the following is recorded in the copy record:

26/02/21
	Prosecution :	Sgt Ana
	Accused	:	Present
	Magistrate	:	Bail application not filed, further time allowed.
			:	12/3/21 for Mention…
			
	Later:
	Magistrate	:	Accused willing to take progressive approach.
			:	Plead guilty all counts.
			:	Summary of facts admitted.

Mitigation	:	43 years old
:	Resides in Suva, Flagstaff
	…
:	Admit being in the wrong side of the law…
:	Can’t blame anyone;
:	I committed wrong, that’s all;
:	Take time to pay…”

29.	The appellant also argues that on this day the learned Magistrate failed to inquire whether he still maintained his position of being represented by a private lawyer or not. This failure has resulted in an unsafe conviction.

30.	It is trite law that the right to counsel is not an absolute one when the appellant appeared in court on the first occasion he had opted to engage a private counsel. 

31.	On the date the appellant had pleaded guilty the copy record shows that the matter had already been given a mention date for 12th March, 2021. 
The matter was recalled in my view upon the appellant’s request and as the record suggests it was the accused who had informed the learned Magistrate that he was willing to plead guilty.

32.	In the circumstances, it is unfair on the appellant to blame the learned Magistrate when the appellant on his freewill had informed the court about his intention to plead guilty and which he subsequently did. On this basis the appellant had waived his right to legal representation at this time. Moreover, the appellant went further to admit the summary of facts read to him. The guidelines in Suren Singh’s case (supra) was formulated by Shameem J. as follows:
For the guidance of Magistrates in the future however I suggest the following format before the plea is taken:
 
1.                  Before you plead to the charge, I must inform you that you have the right to defend yourself, to instruct a lawyer of your own choice, or if you wish, to apply for a lawyer on legal aid.
 
2.                  Do you wish to instruct your own lawyer?
 
3.                  Do you wish to apply for legal aid to the Legal Aid Commission?
 
If the answer is no to (2) and (3) then the Magistrate should hear the plea. If the plea is one of Guilty the Magistrate should ask:
 
4.                  Are you pleading guilty voluntarily or have you been pressured    
		   or induced to do so?

An adherence to the above format may reduce substantially the numbers of appeals filed on the grounds of unfair procedure.
 
 33.	On 1st July, 2019 when the appellant first appeared in the Magistrate’s Court he was given his right to counsel. The appellant opted to engage private counsel thereafter on 21st January, 2020 the appellant pleaded not guilty to all the counts.  When the matter was called on 26th February, 2021 the court had adjourned the matter to 12th March, 2021 for mention since the appellant had not filed his bail application. According to the copy record the matter was recalled at the request of the appellant who informed the court that he was willing to plead guilty. The copy record mentions “Accused willing to take progressive approach.” 

34.	In this situation strict adherence to the above mentioned guidelines is not possible since it was the appellant who had indicated to court that he wanted to change his plea by taking a progressive approach which he did. The counts were put to him thereafter he admitted the summary of facts and then mitigated. The learned Magistrate accommodated the request of the appellant and proceeded to sentence after complying with the procedure of putting the counts, reading the summary of facts and listening to the mitigation offered. 

35.	Considering the fact that the appellant is unrepresented I have also taken the liberty to see whether the plea taken by the appellant was equivocal. I have perused the copy record and on the basis of what is recorded this court is satisfied that the appellant had voluntarily and unequivocally changed his plea from not guilty to guilty.  On the facts before this court there is no prejudice caused by the failure of the learned Magistrate to again put to the appellant his right to counsel. It is obvious that the appellant had understood the nature of the charges and the consequences of pleading guilty.  The summary of facts also satisfied all the elements of the offences. 

36.	The appellant is merely taking advantage of the lack of details in respect of any inquiry by the learned Magistrate after he had indicated his intention to plead guilty. There was nothing much the learned Magistrate could have done when he was satisfied that the appellant on his own motion had informed the court of his intention to plead guilty. There is no error made by the learned Magistrate in this regard.  

37.	This ground of appeal is also dismissed due to lack of merits. 
GROUND THREE

The right to counsel was continuously denied and ignored by the learned Magistrate resulting in a substantial miscarriage of justice.

38.	The appellant argues that the learned Magistrate had only inquired about his right to legal representation once.  Thereafter the appellant had appeared in court but the learned Magistrate did not inquire about his legal representation hence the conviction is not safe.

39.	From the totality of the noting in the copy record it is incorrect for the appellant to suggest that the learned Magistrate had denied and/or ignored his right to legal representation.

40.	On his first appearance on 1st July, 2019 the appellant was given his right to counsel, the appellant had opted to engage private counsel. Thereafter, the appellant had appeared in court on different occasions but he did not do anything in furtherance of this right.  When the appellant informed the court about his change of plea from not guilty to guilty the appellant in my view was aware of what he was doing because it was upon his request the file was recalled since the court had already adjourned the matter. 

41.	In court the appellant informed the learned Magistrate of his intention to change his plea which was allowed.  There is also no evidence of any prejudice caused to the appellant in effect the appellant in his mitigation admitted his guilt as well.

42.	This ground of appeal is also dismissed due to lack of merits.

ORDERS

1.	Leave to adduce fresh evidence is refused. 
2.	The appeal against conviction is dismissed due to lack of merits.
3.	30 days to appeal to Court of Appeal.

Sunil Sharma
Judge

At Lautoka
18 January, 2022

Solicitors
Appellant in person.
Office of the Director of Public Prosecutions for the Respondent.