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State v Lutunatabua [2011] FJMC 176; Criminal Case 738.08 (29 September 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case Nos; 738/08, 740/08, 346/09.

BETWEEN

THE STATE

AND

JOSEFA LUTUNATABUA

RULING

1. The accused pleaded guilty in the case numbers 738/08, 740/08 and 346/09 on the 10th January 2011. Later on the 21st February 2011 he made an application to change the plea in all three cases. The prosecution filed objections and this is the ruling regarding the accused's application.
   
2. I will first set out the chronology of events of each case.
   
3. The accused is charged for house breaking entering and larceny contrary to Section 300 of the Penal Code in case no 738/08.
   
   1. When the accused was initially produced to court on the 13th October 2008 he sought to look for a lawyer.
      
   2. However later on the 10th November 2008 the accused waived right to counsel and on the 24th November pleaded not guilty to the charge.
      
   3. The case was set for hearing on the 04th June 2010 and the hearing was vacated as the accused escaped from remand prison. Later the accused was arrested and on the 09th June 2010 and he informed Court that he wants to change his plea in all his cases.
      
   4. The Court explained his right to legal representation again on the same date and the accused waived his right to counsel again. Further it was inquired whether he voluntarily makes the application to plead guilty in his cases.
      
   5. The accused informed court that he voluntarily makes the application and no pressure from any person. Thus the Court ordered all his cases to be called together on the 23rd June 2010. On the 23rd June 2010 the accused informed Court that he does not want to change his plea. Accordingly case was adjourned to mention to fix for hearing.
      
   6. Again on the 10th January 2011 the accused informed the Court that he wants to plead guilty in all his cases.
      
   7. The Court once again explained right to counsel and he waived right to counsel. The charge was read over and explained to the accused. He understood the charge and pleaded guilty.
      
   8. The accused further informed Court that he pleads guilty on his own freewill.
      
   9. The summary of facts was admitted by the accused and the Court convicted him for the offence having been satisfied that his plea was unequivocal.
   10. The case was then adjourned for previous conviction report. On the 21st February 2011 the Prosecution tendered a P.C. report with 45 previous convictions and the accused disputed 2 previous convictions and further said that he wants to change his plea again.
       
4. In case no 740/08 the accused is charged for house breaking entering and larceny contrary to Section 300 of the Penal Code.
   
   1. When the accused was initially produced to court on the 13th October 2008 he sought to look for a lawyer.
      
   2. However later on the 10th November 2008 the accused waived right to counsel and on the 24th November pleaded not guilty to the charge.
      
   3. On the 10th January 2011 the case was fixed for hearing. Then the accused informed Court that he wishes to change his plea.
      
   4. Right to legal representation was explained again to the accused and he waived right to counsel.
      
   5. The charge was read over and explained. The accused understood the charge and he pleaded guilty.
      
   6. The Court inquired whether he pleads voluntarily. The accused said "on my own freewill." The accused admitted summary of facts and accordingly the accused was convicted for the offence having been satisfied that his plea was unequivocal.
      
   7. The case was adjourned for previous convictions report and on the 21st February 2011 he disputed two of his previous convictions out of 45 previous convictions and said that he wishes to change his plea again.
      
5. In case no 346/09 the accused is charged with larceny from person contrary to Section 271 of the Penal Code.
   
   1. On the 21st July 2007 the accused pleaded not guilty to the charge.
      
   2. The case was set for hearing on the 07th June 2010 and it was informed the accused escaped form remand prison. Thus the hearing was vacated.
      
   3. Later the accused was arrested and on the 10th January 2011 the accused informed Court that he wishes to change his plea.
      
   4. The accused was explained right to legal representation and the accused waived right to counsel.
      
   5. The charge was read over and explained and the accused understood the charge and pleaded guilty.
      
   6. The accused was inquired whether he pleads guilty voluntarily. The accused said "on my own freewill".
      
   7. The accused admitted summary of facts and he was convicted as the Court was satisfied that his plea was unequivocal.
      
   8. The case was adjourned for previous convictions report and on the 21st February 2011 the accused disputed 2 of previous convictions out of 45 PC s and informed Court that he wishes to change his plea again.
      
6. In all these three cases the Court inquired on the 21st February 2011 as to why he wishes to change the plea again. The accused said;
   

"Lot of things were in my mind on that day. I was feeling guilty. That's why I pleaded guilty."

7. I have considered authorities where right to change the plea has been discussed. I have considered the decisions in The king V. Plummer 1902 2 QB 339 and in Lloydell Richards V the Queen 1993 Appeal Cases 217. It appears that the court has discretion to allow a change of a plea but it has to be exercised only under exceptional circumstances. Further there should be justifiable and sufficient reasons for a court to allow a change of a guilty plea.
   
8. It appears that in Drew V R [1985] 81 Cr.App.R 190 the following principles have been discussed regarding the changing of plea.
   
   1. Firstly Court may allow a change of plea at any time before the sentence.
   2. Second, that the discretion exists even where the plea of guilty was unequivocal.
   3. Third, that the discretion must be exercised judicially.
   4. Fourth that a failure to exercise that discretion amounts to a material irregularity.
      
9. In all three cases the accused was explained his right to counsel and the accused expressly waived right to counsel. He did not complain at any time that he was not given chances to get legal representation.
   
10. The court inquired from the accused in all three cases whether he wanted to change his plea voluntarily. The accused told the Court in all three cases that he pleads guilty on his own freewill. Further he admitted the facts of each case and I do not have any reason to think that his pleas in all three cases were not unequivocal.
    
11. The accused did not give a valid reason to make an application to withdraw his guilty pleas. The only thing he said was that he pleaded guilty because he was feeling guilty. I do not think that the accused could satisfy this Court that he has some exceptional reasons to allow his application.
    
12. Besides it appears that in all these three cases the hearings could not be proceeded due to the fault of the accused. In two cases he escaped from prison soon before the date of the hearing. Secondly he informed Court in 740/08 that he wishes to plead guilty on the date of the hearing. It appears that the accused has systematically taken time to dodge these cases from being concluded.
    
13. The accused could not satisfy this court as to why he should be allowed to change his plea again in all these three cases. Accordingly I dismiss his application and inform the accused to mitigate before sentencing him.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate
Lautoka

29.09.2011