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Regina v Mendana [2004] SBHC 15; HC-CRAC 002 of 2004 (13 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 002 of 2004

REGINA

-v-

ELLIOT MENDANA, CYRIL VIURU CECIL
BARLEY AND CHARLES KERE

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.).

Date of Hearing: 11^th February 2004
Date of Judgment: 13^th February 2004

K. Averre for the Appellants.
H. Kausimae for the Crown.

JUDGMENT

KABUI, J. The four appellants filed their appeals through the Magistrate Court at Gizo on 21^st July 2003 by notice of appeal, addressed to the Registrar of the High Court. Each of them has appealed against his conviction and sentence. Each of them had been charged with the offence of having received stolen property, contrary to section 313(1) of the Penal Code Act (Cap. 26). When they appeared in the Magistrate Court at Gizo on 14^th July 2004, they each pleaded guilty to the charge being put to each of them by the Magistrate. The Magistrate sentenced each of them to 12 months imprisonment.

Grounds of Appeal.

The grounds of appeal are the same for all the appellants. Firstly, each of them pleaded guilty on the advice of the Police Officer, Geoffery Pasio, who was said to be the investigation officer. Secondly, none of them had known that the property they bought had been stolen. Thirdly, each of them has disputed the quantity of tobacco obtained unlawfully as specified in each of the charges laid against them as being incorrect. This is a question of fact.

The Guilty Plea.

Section 284(1) of the Criminal Procedure Act, (Cap. 7), “the CPC” states-

“...No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted of such plea by a Magistrate’s Court, except as to the extent or legality of the sentence...

(2)----------------------------------------------------------------------

(3)-----------------------------------------------------------------------“.

This subsection obviously assumes that the guilty plea had been unequivocal and intended to be so by the accused upon being arraigned whether represented by counsel or not at the hearing in the Magistrate Court in accordance with section 195 of the CPC. What if the accused for some reason did plead guilty but such plea did not represent his or her true intention. In this regard, Avory, J. in R. v. Forde [1923] All E.R. (reprint) 477 at 479 said-

“...The first question that arises is whether this court can entertain the appeal. A plea of Guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (i) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged...”

There is another situation which can result in a guilty plea being regarded a nullity by the court. In R. v. Terry Michael Inns (1975) volume 60 Criminal Appeal Reports 231 at 233, Lawton, L .J. said-

“...When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity...”

In this case, the appellants had been advised by the Police Officer, Geoffery Pasio, to plead guilty in order to get leniency. The appellants did so and they did not get leniency as expected. Instead, each of them had been sentenced to serve 12 months in prison. They are now putting the blame for their plight on the advice given to them by Police Officer, Geoffery Pasio, implying that if each of them had been free to make the choice, each of them would probably have pleaded not guilty. This position is evident in ground 3 of each of the notices of appeal in that each had had no knowledge of the tobacco being stolen property at the point of obtaining the said property in each case. There is however no evidence of pressure or threat having been applied upon each of them to plead guilty. This case can be distinguished on the facts from Terry Michael Inns’ case cited above in that respect but perhaps the same in principle in that the choice to plead guilty was not a free choice because that choice had been coloured by a friendly and innocent advice coming from an inappropriate authority to give such advice. Counsel for the appellants did not press this point and so I need not rule on it. The point will have to wait for another time. On the facts, the appellants did have a defence in law to the charge against them. That defence was that each of the appellants had had no knowledge of the fact that the tobacco had been stolen property in each case, the issue to which I now turn.

Where there is a defence in law on the record.

In R .v. Fanasia [1985/86] SILR 84, the appellant pleaded guilty to the third count being using a motor vehicle on the road without a third party insurance policy, contrary to section 8(1) and (2) of the Motor Vehicles (Third Party Insurance) Act, 1972 (now Cap. 83). The appellant was duly convicted and sentenced accordingly on that count. The basis of appeal was that the Magistrate had failed to bring to the attention of the appellant the effect of subsection (3) to section 8 which provided a defence. The appellant had not been represented by a lawyer at the hearing in the Magistrate Court. The appeal was allowed on that ground. The same issue was again raised in George Yaneo v. Director of Public Prosecutions [1985/86] SILR 199 with the opposite result. The difference was that in the latter case, there was nothing in the record to point to the same defence in section 8(3) of the same Act as was the case in the former. I revisited the same issue in R. v. John Solo, Criminal Appeal No. 089 of 2000. In that case, I ordered that the conviction be quashed on the ground that the Magistrate failed to explain to the appellant the element of “breaking” in the offence of store-breaking, contrary to section 300(1) of the Code.

Disclosure of a defence on the record.

In this regard, section 313(1) of the Penal Code Act, (Cap. 26) “the Code” states-

“...(1) Any person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour, is guilty of an offence of the like degree (whether felony or misdemeanour) and shall be liable-

(a) in the case of felony, to imprisonment for fourteen years; and
(b) in the case of misdemeanour, to imprisonment for seven years.

(2)------------------------------------------------------------------------.

(3)---------------------------------------------------------------------"

This issue was the mainstay of the case for the appellants argued by their Counsel, Mr. Averre. He argued that on the facts presented to the Magistrate, there was doubt that the appellants had had knowledge of the fact that the tobacco received or obtained had been stolen elsewhere and was being sold to them on individual basis. He argued that knowledge was an element in the offence of receiving under section 313 (1) of the Code and on that basis the Magistrate should not have entered a guilty plea in the first place. He argued that on that basis, the conviction based on the guilty plea should be quashed accordingly. Section 306(1) of the Code now section 313(1) of the Code had been explained by Daly, C.J. in R. v. Ben Tumulima and Others, and Criminal Appeal No.15 of 1982 (unreported).

At page 2 of the judgment, His Lordship said-

“...This subsection requires the prosecution to make the court sure of two elements. First, that the property was stolen and, that at the time the accuseds received the property he knew that it was stolen...”

In Jimmy Eddie Togiabae v. Director of Public Prosecutions, Criminal Case No.30 of 1986 (unreported), the appellant had been charged with receiving stolen property, contrary to section 306(1)(a) of the Code now section 313(1) of the Code. Although the appellant pleaded not guilty, he was found guilty and sentenced by the Magistrate. One of the grounds of appeal was that there was some doubt in the evidence that the appellant had had knowledge of the fact that the money had been stole property. On the basis that the evidence was insufficient to prove knowledge of the stolen property, the conviction was quashed accordingly.

Facts on the record in this case.

The seller of the property was William Sasapio Tiakihenua Hitu. He went to Charles Kere on 3^rd July 2003 and sold a quantity of tobacco to the said Charles Kere for $200.00. When Charles Kere asked where the tobacco had come from, the seller said he got it from a shop. On 5^th July 2003, the seller went to Cecil Barley and Cyril Viulu separately and sold to each of them a quantity of tobacco worth $100.00 each. When asked where the tobacco had come from the seller said, “deal no more, one man army”. That same day, Cecil Barley on-sold a quantity of his tobacco to Elliot Mendana for $120.00. When Elliot Mendana asked where the tobacco had come from, Cecil Barley said it had come from a shop. Whilst the quick acceptance of the tobacco from the seller without further inquiries would seem to suggest knowledge on the part of each appellant, it cannot be said to be conclusive so as to remove a reasonable doubt in one’s mind. Unless, the seller of the tobacco is a well known thief in the appellants’ locality, any suspicion about the status of the tobacco being sold as stolen property would be no evidence of knowledge of the status of the tobacco being stolen property. I have come to the conclusion that the conviction of the appellants entered on their own guilty plea should not be allowed to stand. There is clearly a defence on the facts disclosed on the record which would have entitled the appellants to have entered a plea of not guilty at their trial on the 14^th July 2003. Their conviction is accordingly quashed. I order accordingly. This being the case, I need not consider the issue of sentence and the dispute over the quantity of tobacco in each charge laid against them. The consequence of my verdict is that all the appellants be released from Rove Prison immediately. I so order.

Counsel for the appellants, Mr. Averre, did bring to my attention the fact that the appellants had been in detention for almost 8 months before their appeal was heard by the High Court. He pointed out that applying the usual one third remission rule, they would be due for release soon after the hearing of their appeal. I have perused the File sent from the Gizo Magistrate Court but found no other useful information to supply to Counsel in this regard. Certainly, the concern raised is a serious one indeed. The appellant had missed the benefit of section 290 of the CPC which allows the appellants to be released on bail pending their appeal or have the execution of their sentence suspended pending appeal. This opportunity has now passed them. The benefit this section confers upon convicted persons should be borne in mind by the trial magistrate if the accused is not represented by Counsel to avoid the injustice I referred to above. There is nothing much I can do in this regard but to agree with the concern raised by Counsel for the appellants. My powers under section 293(1) of the CPC are wide enough to enable me to quash the conviction without further order. That is, I would not order a retrial in the circumstances obtaining in this case. It is for the Police to reconsider their position in the light of my verdict in this appeal.

F.O. Kabui
Puisne Judge