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Kurivola v State [2001] FJLawRp 64; [2001] 2 FLR 269 (7 August 2001)

TIMOCI KURIVOLA & PAULA KUNAUWA v STATE

High Court Criminal Appellate Jurisdiction
19 July, 7 August, 2001 HAA052/00L

rape – housebreaking with intent to commit felony – assault occasioning actual bodily harm – appeal against conviction and sentencing – whether unrepresented accused's rights to counsel and fair trial breached – Criminal Procedure Code ss190(1)(b)(ii), 192A(1), 206(1) and (2), 309(1); Penal Code s302(1); 1997 Constitution s28(1)(d)

The Appellants were convicted on their own plea of guilty to charges of rape, housebreaking with intent to commit felony and assault occasioning actual bodily harm. A1 was sentenced to 5 years on count 1 and 2 years in count 3, to be served concurrently. A2 was sentenced to 4 years and 18 months on counts 2 and 3 respectively, to be served concurrently. The Appellants appealed in person but were later represented by counsel, who filed an amended petition containing 10 grounds, variously: that the Magistrate erred in law and in fact and failed to exercise care and diligence in entering a plea of guilty against the unrepresented accused in view of the seriousness of the charge and the severity of the sentence; that the Magistrate erred in law and in fact in taking the plea before informing the Appellants of their legal rights of representation under the Constitution and generally; that the Appellants were coerced and greatly influenced by the Police to plead guilty, causing grave injustice; that the plea of guilty was not unequivocal due to coercion by the Police disallowing the Appellants from acting as free agents; that they did not understand what they were pleading guilty to when there was no carnal knowledge of the complainant by them that day; that the charge against A2 and facts outlined in Court are not supported by the medical report; that the findings of the Magistrate of an incriminating nature against A2 are not supported by evidence; that the sentence was harsh and excessive. The Court examined the record and found the Appellants had elected to waive their Constitutional right to counsel. It found that the inconclusive medical report did not assist the Appellants where results of swabs were not produced in Court. The Court remarked that the Magistrate should have examined the caution statements as only one charge was admitted, but there was nothing unequivocal in the admission of facts by the Appellants. In the end, it dismissed the grounds of appeal, and upheld the sentences. The Court comments on the need for evidence to be in a form of a narrative according to the provision of Criminal Procedure Code s190(1)(b)(ii).

Held–(1) There was no breach of Appellants' right to counsel and fair trial; there was no evidence of coercion; no evidence that Appellants did not understand the charge they were pleading guilty to.

(2) The Magistrate, having recorded that she explained to the Appellants their right to legal representation, and they elected to conduct their own case, did all that was necessary to appraise the Appellants of their rights to legal representation and the seriousness of the charges they were facing. By expressing a choice to defend themselves in person, they waived their constitutional right to counsel under section 28(1)(d) of the 1997 Constitution.

State v Suren Singh & 4 Ors (2000) 2 FLR 127 appl.

(2) Medical report findings are not essential to make out the offences. The fact that the medical report was inconclusive does not enhance the Appellants' submission.

Appeal against conviction and sentencing dismissed.

Other cases referred to in Judgment
cons Ananaia Nawaqa & Ors v State (2001) HBM 0014/00L 15 March 2001
cons DPP v Jolame Pita (1974) 20 FLR 5
cons Jone Koro Sekinabou v State [2001] HAA 0013/01L 20 April 2001
foll Kuruka Bogiwalu and Ifereimi Nakauta v State [1998] AAU0006/96S 15 May 1998
appl Mohammed Kasim v R Crm App 21/93 FCA Reps 94/291
cons R v Iro (1966) 12 FLR 104
foll Sisa Kanaveilomani v State (2001) AAU 0018/94
cons State v Isaia Saukova (2000) 1 FLR 135
cons Timoci Momotu v State AAU 0018/94

Suresh Verma for the Appellants
Josaia Waqaivolavola for the Respondent

7 August, 2001

JUDGMENT

Prakash, J
On 22 May 2000 the Appellants with another accused appeared before the Magistrates' Court in Sigatoka. They were charged with the following offences:

FIRST COUNT
Statement of Offence

RAPE: Contrary to section 149 & 150 of the Penal Code Cap. 17.

Particulars of Offence

TIMOCI KURIVOLA on the 20th day of May 2000 at Maro, Sigatoka in the Western Division had unlawful carnal knowledge of AMINA SHERRY KHAN d/o TAKI KHAN without her consent.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 149, 150 & 21 of the Penal Code Cap. 17.

Particulars of Offence

PAULA KUNAUWA on the 20th day of May 2000 at Maro, Sigatoka in the Western Division aided and abetted TIMOCI KURIVOLA to have unlawful carnal knowledge of AMINA SHERRY KHAN d/o TAKI KHAN without her consent.

THIRD COUNT

Statement of Offence

HOUSE BREAKING WITH INTENT TO COMMIT FELONY Contrary to section 302(1) of the Penal Code Cap. 17.

Particulars of Offence

TIMOCI KURIVOLA, PAULA KUNAUWA and FILEPE VUNISA on the 20th day of May 2000 at Maro, Sigatoka in the Western Division, broke and entered by night the dwelling house of AMINA SHERRY KHAN d/o TAKI KHAN with intent to commit felony therein namely Larceny.

FOURTH COUNT

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM Contrary to section 245 of the Penal Code Cap. 17.

Particulars of Offence

FILIPE VUNISA on the 20th day of May 2000 at Maro, Sigatoka in the Western Division assaulted ZAITUL NISHA d/o MOHAMMED LATEF, thereby occasioning actual bodily harm.

They pleaded guilty to the charges. They were convicted and sentenced. The first Appellant was sentenced to 5 years on Count 1 and 2 years in Count 3. Both sentences were to be served concurrently. The second Appellant was sentenced to 4 years imprisonment on Count 2 and 18 months on Count 3. Both sentences were to be served concurrently.

Both Appellants originally filed petitions of appeal in person. It was difficult to discern what were the grounds of appeal from these. Fortunately, Counsel was later briefed by the second Appellant. By leave an Amended Petition was filed by the second Appellant. At the hearing Counsel stated that he would represent both Appellants. Submissions were made on behalf of both Appellants. The following grounds are listed in the Amended Petition of Appeal:

1. The learned Magistrate erred in law and in fact in entering plea of guilty in view of the seriousness of the charge and the severity of the sentence it carried when your Petitioner was not legally represented.

2. The learned Magistrate failed to exercise care and diligence she ought to have when dealing with your Petitioner who was unrepresented and the charges were serious carrying severe penalty.

3. The learned Magistrate erred in law and in fact in taking the plea before informing your Petition of his legal rights of representation and others under the constitution and generally. And even more so in view of matters stated in paragraph (1) and (2) above.

4. The Petitioner was coerced and greatly influenced by the Police to plead guilty. Accordingly, grave injustice was done to the Petitioner.

5. The plea of guilty is not unequivocal as coercion by the Police and influence exerted was so overwhelming comprehensive and complete that the Petitioner was not acting as a free agent when he had pleaded guilty to the charges.

6. What your Petitioner had understood he was pleading guilty to was diametrically different from what he had actually pleaded guilty to. There had been no carnal knowledge of the complainant by any one on that day.

7. The charge against the 2nd accused and facts outlined in Court are not supported by the Medical Report.

8. The findings of the learned Magistrate of an incriminating nature against the 2nd accused are not supported by evidence.

9. Your Petitioner respectfully repeats paragraphs 1-8 above and says that the conviction against him cannot be sustained.

10. The sentence is harsh and excessive.

At the hearing learned Counsel for the Appellants centered his arguments on the responsibility of the learned Magistrate to ensure that the Appellants, who were unrepresented in the lower Court, understood what they were pleading guilty to. Counsel argued that section 206 of the Criminal Procedure Code was not fully complied with. The Appellants caution statements were not put before the Magistrate Court. There was nothing in the facts outlined to suggest that the complainant was raped by the Appellant. He submitted it was not clear who was inserting his finger into the Complainant's vagina. He did not aid or abet. Appellant Counsel submits that the admission by both Appellants were for breaking and stealing only. He further submitted that the medical report does not support a charge of rape. In summary learned Counsel for the Appellants submitted that the facts outlined did not make out each ingredient of the offences to support the convictions entered.

As regards grounds 1-3 of the petition it is clear that the learned Magistrate was sensitive to the seriousness of the charges before her Court, and the need for legal representation. She records as such: "Each charge explained in details to each accused and each asked in view of seriousness of offences as to whether they need legal representation. All accused have indicated their wish to conduct cases on their own" In this Court's view the learned Magistrate did all that was necessary to appraise the Appellants of their rights to legal representation and the seriousness of the charges they were facing. Under Section 28(1)(d) of our Constitution every person charged with an offence has the right "to defend himself or herself in person or to be represented, at his or her awn expense, by a legal practitioner of his or her choice..." In this case the Appellants had expressed a choice to defend themselves in person. As such they waived their constitutional right to counsel (see Suren Singh & Others v State Cr. App No. 079 of 2000S). There is no compulsory legal aid system in Fiji for the offences the Appellants were charged before the Magistrates' Court.

The Court now turns to grounds 4 and 5 of the Petition. It is not clear what are the basis of coercion by the Police that is being alleged. There is nothing in the record to suggest any coercion. At the hearing of the Appeal no materials were placed before the Court to indicate any undue influence or that the Appellants were not free agents when they pleaded guilty before the Magistrates' Court.

It is not clear what is meant in grounds 6 to 8. No basis has been put before this Court to suggest that the Appellants did not understand what they were pleading guilty to. The issue of carnal knowledge was supported by the admission of the first Appellant. The second Appellant was charged as an aider and abettor. The facts recorded made out the offences. The medical report findings are not essential to make out the offences. The medical report notes: "Patient (?) finished having her menstrual cycle today. Difficult to prove by examination that she has just been raped since she is not a virgin. However, she has bruises and bite marks on her body and high vaginal swabs (?) and smear having been taken ...." No results of swabs or smear were before the Court. However, the fact that the medical report was inconclusive does not enhance the Appellant's' submission. An admission based on the facts put before the accused is sufficient admission of guilt. Under Section 192A(1) of the Criminal Procedure Code: "An accused person or his or her legal practitioner may in any criminal proceedings admit any fact or any element of an offence, and such cm admission will constitute sufficient proof of that fact or element." Section 192 deals with admission of facts that are admitted in writing. However, the principles are relevant to guilty pleas, as provided for in Section 206(1) and (2) of the Criminal Procedure Code.

The issue of the fulfillment of the requirements of Section 206 of the Criminal Procedure Code has been raised by the Appellants. Section 206 states: "If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence, upon or make an order against him, unless there shall appear to it sufficient cause to the contrary". It is clear from my own experience as a Resident Magistrate and numerous records from Magistrates' Court submitted to the High Court that accused persons plainly state "I plead guilty" or "guilty" when the charges are put to them. The facts once outlined usually elicit a response "I admit" or "Admitted" or "Facts admitted". It is clear from the records that specific questions directed at accused persons to assess their understanding is not usually recorded. Under Section 190(1)(b)(ii) of the Criminal Procedure Code there is no requirement to record all questions asked.

The High Court at Lautoka has over the past 12 months dealt with the issue of the equivocality of guilty pleas in Magistrates' Courts. The cases are: The State v Isaia Saukova Cr. Appeal HAA 013 of 2000L; Ananaia Nawaqa & Others v State Misc Action 0014/2000L; and Jone Koro Sekinabou v State Cr. App HAA 0013 of 2001L. In these cases the High Court had emphasised the need for Magistrates' Courts to exercise great care in accepting guilty pleas from unrepresented accused persons on their first appearance in Court. This is more so in cases where accused are facing serious criminal charges.

Under Section 309(1) of the Criminal Procedure Code: "No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates' court, except as to the extent of appropriateness or legality of sentence". However, the Courts have emphasised that this proviso is no bar to entertain an appeal against conviction in certain circumstances. As the Court of Appeal had stated: "If it can he demonstrated that an unrepresented accused has pleaded guilty in a manner that is in any way equivocal and uncertain, or that the accused entered the plea -when he did not have full understanding of the effect of the plea, namely that he was admitting that he committed the offence with which he has been charged, an appeal against conviction may be entertained despite the guilty plea. In that event, s309(1) will not apply because there has not been an effective and binding plea of guilty" (Kuruka Bogivalu and Ifereimi Nakauta v State Cr. App No. AAU 006 of 1996S at p5). See also R v Iro (1966) 12 FLR 104, and DPP v Jolame Pita 20 FLR 5.

In this case Appellant counsel has stated that the Appellants' caution interviews were not tendered and perused by the learned Magistrate. This Court had in Jone Koro Sekinabou (opcit) recommended that "... Magistrates should, as a matter of sound practice and to meet the requirements of Section 206(2) of the Criminal Procedure Code insist that they see the accused caution interview to ensure the plea is unequivocal." However, this Court is also mindful that the Fiji Court of Appeal has stated that this practice could not be elevated to be a requirement, as a matter of law (see Kuruka Bogivalu & Another (opcit)). In this case the learned Magistrate, according to the records, did not peruse the caution interviews. The record of the facts put forward by the Prosecution did state, inter-alia, "Early morning of 21/05/00 accused raided and brought to Police Station. All interviewed under caution. Admitted they intended to break house and steal". In the Court's view the learned Magistrate should have perused the caution statement given that only one offence was being admitted, as stated by the Prosecution. However, by consent of the parties, the caution interview notes of both Appellants were put before this Court. This was to ensure that the ends of justice were met. In Kuruka Bogivalu (opcit) the FCA has stated: "Whether a plea of guilty is effective and binding will be a question of fact to be determined by the Appellate Court ascertaining from the record and from any other evidence tendered, what occurred at the time the plea was entered" (p6) A perusal of the caution statements indicates that both Appellants admit their respective roles in the offences they were charged with. It is clear that their intention was to rob the complainants. However, it is apparent they were not able to get the money they wanted.

Both Appellants did force the complainant to a lemon tree in the compound. They admit to threatening her. The first Appellant admitted to tearing her clothes and pant and having sexual intercourse with her. He also admitted to biting her neck and breast. He was also asked whether he felt that he discharged his sperm into the complainant's body. However, no response is recorded to this question. The statements recorded in their caution interviews support the charges of Rape against the first Appellant and for aiding and abetting against the second Appellant. As far as Count 3 is concerned they both admitted to entering the house of the complainant to get money.

There was nothing in the mitigation to suggest that any defense was raised or their pleas were equivocal, as was raised in the case of Isaia Saukova (opcit). In that case Gates J had commended the DPP's practice direction to all Prosecutors to tender unrepresented accused caution statements and charge statement to Court. Gates J had further stated that: "In cases such as this, where there is a defence raised both in the facts outlined, and which is maintained in the mitigation of the accused the Magistrate could examine the accused's statements to the police" (p4). In this case neither the facts nor the brief mitigation offered by the Appellants raised any defenses or doubts about their pleas. In this Court's view none of the submissions by the Appellants raise any issue with the conviction entered by the learned Magistrate. As such grounds 1-9 are dismissed.

The Court now turns to the sentences imposed (Ground 10). As regards the offence of Rape the Court does not need to discuss in detail the principles or the tariff in Fiji. These have been well documented in the Fiji Court of Appeal case of Mohammed Kasim v The State (Cr. App. No. 21 of 1993). This decision has been recently analysed by the High Court in the context of sentencing by the Magistrates' Courts for such offences in Sisa Kanaveilomani v State (Cr. App. HAA 015 of 2001S). This case together with the case of Timoci Momotu v State (Cr. App. AAU 0018 of 1994) outlined the procedures that should be adopted by the Magistrates' Court in dealing with rape sentencing. In considering the relevant principles the sentence imposed by the learned Magistrate on the 1st Appellant was appropriate. For the second Appellant the sentence, as aider and abettor, was also appropriate. As regards the sentence in Count 2 the only concern is the different sentences involved - 2 years for the first Appellant and 18 months for the second Appellant. The facts suggest that they were equally responsible for this offending. However, it is evident that the learned Magistrate gave the second Appellant a lesser sentence since he was a first offender. The Court does not see the need to interfere with the sentences imposed. These sentences were to be served concurrently with their sentences in Counts 1 and 2. This Court will also not disturb this.

The result is that the appeals against conviction and sentences are dismissed.

Appeal fails.

Marie Chan