IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 51 of 2007

PUBLIC PROSECUTOR

-V-

DEAN O’CONNOR

Coram: Justice C. N TUOHY

Date of Hearing: 28th March 2008
Date of Decision: 28th March 2008

Counsels: Mr. Standish for Prosecution
Mr. Toa for O’Connor

ORAL RULING

1.	On 29th January Dean O’Connor pleaded guilty to a charge of possession of cocaine laid under the Dangerous Drugs Act. He was then convicted after his guilty plea and remanded for sentence to a date at the end of February. 

2.	On that day during the course of submissions on sentencing his counsel asserted that he did not know that he was in possession of a dangerous drug at that time. That, of course, essentially is an assertion of innocence. At that point I ended the sentencing process and ascertained that Mr. O’Connor did want to make a formal application to vacate the plea of guilty and to set aside the conviction with a view to a trial of the charge. 

3.	He has made a written application supported by a sworn statement. His counsel has filed written submissions and so has the prosecution, and I am grateful for those. There is a very useful collection of the law on the issue about which there is no decided Vanuatu case as far as am aware. 

4.	The start of the matter is whether there is jurisdiction at this stage for the Court to entertain an application to vacate the plea and to overturn the conviction. There is no specific provision in the Criminal Procedure Code Act which allows it. However, that is by no means unique. Counsel have drawn my attention to a New Zealand case of Le Page v. Queen [2005] NZCA 67 which points out that nor is there any relevant statutory provision in the New Zealand Crimes Act which has many similarities with the Penal Code Act of Vanuatu and the Criminal Procedure Act of Vanuatu. However the Court had no doubt that there was an inherent jurisdiction in the High Court to entertain such an application. 

5.	In Vanuatu I think the position is even clearer for 2 reasons:

i)	there is a provision in the Constitution, Section 47 (1), which states:

"The function of the judiciary is to resolve proceedings according to the law. If there is no rule of law applicable to a matter before it a Court shall determine the matter according to substantial justice and whenever possible in conformity with custom".

ii)	This case has also highlighted another slightly unusual feature of the Vanuatu Criminal Procedure Code Act, in particular Section 160(1), which is the section covering a charge and plea to an offence and that provides as follows:

"The information shall be read and if necessary explained or interpreted to the accused person and the Registrar shall call upon him to plead thereto". 

Thus far the provision is in line with provisions in countries with similar systems of law. However the provision goes on to say: 

"If he pleads guilty the Court shall hear his advocate and if the Court is satisfied that the accused person understands the matter and intends to admit without qualification that he committed the offence charged and that the case does not involve any issue which ought to be tried, the Court may convict him on his plea". 

I have to say that that process was not carried out in this case and I doubt if it is carried out specifically in very many cases before the Courts at all. It really says that the Court should not simply accept the plea of guilt from an accused person even if he is represented by counsel. It is often in the case when the Court is faced with an unrepresented counsel that the Court will question an accused after a plea of guilty, to make sure that he is aware of what he is doing and what it means. But that course is not normal, when an accused person is represented by counsel for the simple reason that the Court assumes that counsel has correctly advised the accused of the nature of the charge, and what a plea of guilty means. 

5.	However it has to be said that the provisions of Section 160 are mandatory and it may that in the future the Court will need to question every accused person after a plea of guilty whether he is represented by counsel or not. In this case it is probable that if the accused was questioned in some detail by the Court after his plea of guilty, it would have become apparent that the accused, as he now says (and probably has never said otherwise) did not realize that knowledge is an element of possession, the concept of possession in law, whether it is specifically stated or not. The word possession and the concept of possession in the criminal law does not mean simply that something is on your person, in your hand or in your bag. It also carries with it the concept that you know that that something is on your person, in your hand, in your bag or otherwise in your custody and control. Possession is custody and control with knowledge of the thing possessed.

6.	So first I am satisfied that there is the jurisdiction to entertain an application to vacate the plea and indeed, probably more than that, there remains an obligation on the Court to ascertain that the plea of guilty was entered in knowledge of the fact or knowledge of the meaning of it such obligation arising from Section 160.

7.	As to the principles, these have been very helpfully researched and there is authority from Samoa which adopts New Zealand authority particular a case of Queen v. Ripia [1985] 1NZLR 122 which is a leading case in New Zealand on such applications and there is also a considerable body of law in Australia. The Australian case which is very helpful is Queen v. Hura [2001] NSW CCA 61. 

8.	All of them point to the concept of a miscarriage of justice. That has been discussed in further detail in the cases and the concept of miscarriage of justice does cover a situation like the present where the accused, even though represented by counsel, enters the plea on the misapprehension of what the essential elements of the charge are. And on the basis that he has never admitted one of the essential elements, probably the most essential element in a charge of possession, that is, knowledge of the thing possessed, it would be in my view a miscarriage of justice if he was sentenced when he had not intended to admit the essential elements of the offence within his plea of guilty. I make no comment on the various other matters contained in the application because it is unnecessary for me to do so, and because the Court is now faced with a trial of this charge. 
 
9.	So the plea of guilty is vacated, the conviction set aside and the plea of not guilty reinstated.

Dated at Port Vila, this 28th day of March, 2008

BY THE COURT

C.N. TUOHY
Judge