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State v Ramjan [2010] FJMC 56; Criminal Case 681 of 2008 (28 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 681/08

BETWEEN

THE STATE

AND

MOHAMMED RAMJAN

RULING

1. The accused in this case was charged on the 19th September 2008 with three counts of uttering forged documents, three counts of obtaining money on forged documents and one count of personation.
   
2. The accused pleaded guilty to all seven counts on the 19th September 2008 and the mitigation has been done on the 30th October 2009. Then the case has been fixed for sentencing.
   
3. On the 10th May 2010 when the case was called the accused had sent a letter dated 05th May 2010 asking permission to withdraw his plea. The prosecution filed the response to this application on the 17th May 2010.
   
4. The accused have set out the following reasons for his application to change the plea.
   
   1. That on the 9th day of September 2008 when I was arrested in Apia, Samoa I was kept in custody until the 17th September 2008 without any legal advise or support from any authority.
      
   2. That on 17th September 2008 when I was placed on a flight to Fiji and was arrested on arrival at Nadi Airport and taken to Nadi Police station and was locked after search at 4 am.
      
   100. That at 8 am on 18th September 2008 I was taken to Namaka charged for the alleged offences by Police officers from Suva Stations.
        
   4. That I was never at once given a chance to consult a lawyer or any family members during my caution interview.
      
   5. That I was under pressure from police and the side effect of ongoing custody made me admit the offence.
      
   6. That the police officer namely Abdul of T.C.U. asked me to plead guilty so that he will not object to my bail.
      
   7. That the same officer namely Abdul asked me to plead guilty to the offences so that it makes the case easy for the DPP in the co accused, Salendra Sen Sinha's trial.
      
   8. That I was verbally abused and threatened that if I don't plead guilty I would be remanded and trial will be heard immediately to convict me.
      
   9. That I was in fear from police and the custody of 10 days made me plead guilty to the charges laid against me.
      
   10. That this is the first time to deal with police department and have no knowledge of the process of court and the law of the court.
       
   11. That I want to engage a solicitor of my own choice and prepare a fair and proper defence.
       
   50. That I want to migrate to Australia in future and the conviction will hinder my application.
       
   13. That I am innocent in this case as the entire transaction of the case is done by co accused Salendra Sen Sinha. And I do not have any previous convictions.
       
   14. That the co accused is charged with the same offences and he is in remand and appearing in High Court Lautoka.
       
5. It should be noted that this case has been adjourned several times over a period of one year and eight months since the accused pleaded guilty. The reason for adjournment can be seen as for mitigation, for submissions by the state regarding sentence, due to change of magistrates and unavailability of magistrates and for non appearance of the accused.
   
6. Be that as it may the accused have made this application to change his plea on the above grounds after one year and eight months. At the very out set it should be noted that the accused have not given any reasonable explanation to the delay in making this application.
   
7. The accused have been explained his right to counsel by the court on the 19th September 2009 according to the journal entry. The accused has said "I wish to represent myself." Although on the first day he was unrepresented on the 30th October 2008 a counsel has appeared for the accused and has made submissions on mitigation too. There seems to be no change of his counsel even till 26th February 2010 as another counsel has appeared for the accused on the instructions of his original counsel. Therefore I do not see any basis for the accused to say that he wants to engage a solicitor on his own choice.
   
8. On the 19th September 2008 when the accused pleaded guilty to the all counts the court has recorded what the accused said as follows;
   

"I am pleading guilty on my own free will. No one has forced me to plead guilty"

9. It seems to be an unequivocal plea of guilty and nothing shows on record that the accused was coerced or cajoled. Besides if he was under pressure as he now claims his counsel should have informed court at that stage. But surprisingly until this application was made there was no an iota of an allegation that the accused pleaded guilty under duress. The accused has failed to explain this important fact as to why his counsel did not inform court of such an allegation for nearly one and half years. In the absence of an explanation as to why he took so long to inform court about these allegations it appears nothing less than a sudden recovery from a state of amnesia.
   
10. It appears that the accused has admitted the offence in the caution interview. The following submissions of his counsel do not give the slightest indication of a mishandling of the accused by the police. His counsel informed court at the mitigation that;
    

"He co-operated with police and pleaded guilty in the first opportunity. The main culprit was apprehended due to the help by the accused."

11. In any event it is worthwhile to see whether it is possible to withdraw a plea of guilty and plead not guilty. I have considered the possibility of changing a plea of guilty to a plea of not guilty in the decisions in The king V. Plummer 1902 2 QB 339 and in the Lloydell Richards V the Queen 1993 Appeal Cases 217. It appears the court has discretion to allow an accused to withdraw his plea. Yet the discretion should be exercised only in exceptional circumstances.
    
12. In Fiji High Court case, Ali V The state (2004) FJHC 138 it has been said that an accused should be allowed to vacate his plea if his rights such as right to counsel has been breached. Therefore it is evident that the rationale behind this judgement is that the court could allow withdrawing a plea if the accused's rights are jeopardized or his right are denied.
    
13. However in this case the accused has failed to show that his legal rights are dishonoured. Neither he was able to satisfy court that there are exceptional grounds to allow his application. The accused's application seems like nothing but a wild goose chase at the eleventh hour.
    
14. The intention of making this application appears from the following statement of the accused;
    

"That I want to migrate to Australia in future and the conviction will hinder my application."

15. It should be noted that the process of court should not be abused to meet personal ends. This case has been delayed for many reasons for too long. It is evident from the accused's application itself the predicaments that the investigators have gone through in this case. The court cannot in any way prolong this matter any further as it could be detrimental to the accused as well.
    
16. In the circumstances I am not convinced that there are reasonable or exceptional grounds to allow this application for the accused to withdraw the plea of guilty. Thus I refuse the application and proceed to sentence the accused. Yet I give another chance for the accused to mitigate as it has been long since the mitigation is done on his behalf.
    

Rangajeeva Wimalasena
Resident magistrate

Lautoka
28.05.2010