The objections
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In a case dealt with yesterday, Regina v. Derrick Waeho,
,
Criminal Case No. 34 of 1996, accused said that he would plead guilty. I
asked learned counsel Mr. Faga for prosecution
to read out summary of facts
admitted, in English and then in Pijin. I then decided to ask accused a few
questions to
clarify what appeared to me to be ambiguous in the facts which
could in turn give the impression that there was ambiguity in
the offence
admitted. Accused's learned counsel, Mr. Lavery appeared surprised although
he did not raise objection. Then
at submission as to antecedents of the
accused and mitigation of sentence, I told counsel for the accused that
certain
utterances of facts from the bar table, unless specifically admitted
by the prosecution, were inadmissible; accused would have
to testify about
them if they are to be taken into consideration. Counsel objected. I ruled
against the objection. In
a case that followed,
Regina v. Anna Katea,
Criminal Case No. 35 of 1996, a case of infanticide, accused therein also
said that she would plead guilty. Counsel
for the accused was Mr. Lavery
again. He sought clarification from court whether the procedures adopted by
the court
in recording plea and at mitigation stage in Regina v. Waeho,
was going to be followed in all cases. I directed that my procedure in
recording plea of guilty would be the same in
all cases of plea of guilty,
subject to adjustment where the summary of facts leaves no ambiguity in the
facts being
admitted. In mitigation process, my practice would also be the
same, subject to whether the facts being stated from the bar
are merely of
formal and usual nature and are not potentially contentious. In view of the
submissions made by accused's
counsel, I have decided to give full reasons
for my ruling upholding the procedures I adopted in recording plea and about
evidence in mitigation, in the two earlier cases and this one.
Recounting the story leading to objections.
For the full understanding of the submissions of counsel and the court's
ruling on them it is necessary to recount the
proceedings; I do so.
In each of the two cases referred to above, the respective tive counts of rape,
and of infanticide, was read out and explained
to the accused concerned, who
was asked whether he or she understood the charge. Each answered in the
affirmative. Counsel
for the prosecution was asked to read out in English
then in Pijin, a summary of the facts upon which the accused was charged.
The court then asked accused in each case whether he and she respectively
admitted the facts read out. Each answered
in the affirmative. In each case,
that was followed by the court asking the accused some more questions; in
the first
case up to 5 questions and in the second 4 questions. The answers
given in each case appeared to me to clear up ambiguity and
to be consistent
with the summary of facts and consistent with the elements of the offence.
Each summary of facts was
admitted into the record in each case and marked
annexure 1 to the respective record. A plea of guilty was finally entered
by
the court and each accused was convicted on his and her respective plea of
guilty, on the respective charge. At mitigation
stage, after counsel for
prosecution had stated that accused in the first case had no record of
previous conviction,
Mr. Lavery presented his submission from the bar. He
stated first the formal personal facts about the accused such as his age,
the fact that he still attended school, had no previous conviction and
pleaded guilty. Then he went on to present facts
such as that the girl, the
complainant, though only 12 years old, was already sexually well matured
with developed breasts
and pubic hair and that she was the one who, the day
before the night of the incident, had gone over and asked the accused
to go
to her during the night, to have sexual intercourse with her, and further
that while accused had not had experience
of sexual intercourse, the
complainant had already had the experience and had a boyfriend. In my view
the latter facts
were potentially contentious, and I thought that as they
were not mentioned in the summary of facts, the prosecution might
well not
have been aware of them. I directed that counsel was to present those and
any other potentially contentious
facts through the accused in sworn
testimony so that counsel for the Crown, if he wished, would cross-examine
the accused
on them. Counsel for accused appeared to be surprised by that
procedure. He objected. I asked him to cite legislation or case
law in
support of his objection. He answered that it was the practice in his
experience that facts in mitigation were
simply stated from the bar by
counsel; it was done everyday. He added that he had been aware of it since
he qualified
as solicitor of the Supreme Court in England on 12.8.1982.
Learned counsel Mr. Faga had no objection. I ruled against the objection
and
accused testified. He confirmed what counsel had stated from the bar. Mr.
Faga did not cross-examine. I used the
formal facts stated by accused's
counsel and those in accused's testimony in determining the sentence that I
passed.
When the second case, Regina -v- Anna Katea, was
presented the following day, and accused in it offered plea of guilty, Mr.
Lavery representing her rose, properly
in my view, this time to seek
guidance as to whether, (a) in every case of plea of guilty the court will
insist on asking
questions following presentation of outline of facts and
(b) the court will require accused to testify in mitigation in all
cases.
This time Mr. Lavery's submission was very useful, especially on the
question of mitigating facts being on oath.
He said that the court could in
its discretion ask that accused testify. He had obviously done research
overnight and
was able to cite from " 1992 Edition of Archbold at paragraph
425" and cases therein. The relevant citation in 1992
Edition is paragraphs
5-41 to 5-49. I am sure that Mr. Lavery's extensive experience had expanded
considerably as the
result of the events of the previous day in court at
Kira Kira, Solomon Islands, together with the research he did overnight.
We
all add to our experience, however vast, by reading or learning about
something we had not come across, do we not?
By the close of submissions the position of Mr. Lavery had advancdvanced towards
accepting the procedures I adopted. On
the question of court asking some
questions following the reading out of summary of facts, counsel submitted
that it
was an excellent practice especially in his experience in Solomon
Islands where most accused might not quite understand the
legal position of
the facts they admit. He gave the example of accused in interview with him
admitting assault and after
questioning it turns out that he has in fact
explanation to the admitted facts which explanation discloses the defence of
self defence. Counsel, however, urged the court not to follow that procedure
as standard procedure because he said it
would take a lot of court time and
would slow down the work of court, especially in magistrates' court. He
called it
a matter of public policy. On the question of accused testifying
in mitigation, counsel's submission changed considerably.
He submitted that
yes, accused may be asked to testify, but it must be to resolve conflict in
the facts and that the
decision to ask accused to testify must be exercised
responsibly. He said that the rule is known as Newton Rule. He cited
the case of Regina -v- Cross (1975) Cr LR 591 which I was not
able to find in our library, but I have read the case of Regina -v-
Newton (1982) Cr App. R (S) 388, also 77 Cr App R 13 CAP.
Examination of the Issues
I
start with legislation on the first submission.Criminal Procedure Code,
e,
in Part VIII, dealing with trial before
the High Court, in section 256
simply states:
256. If the accused s "guilty", the pthe plea shall be recorded, and he may
be convicted thereon.
The corresponding section for trial in Magistrates' Court is section 194, in
Part VII. It states:
194 - (1)substance of the charge or e or complaint shall be stated to the
accused person by the court, and he shall be
asked whether he admits or
denies the truth of the charge.
<
(2) If the accused person admits the truthtruth 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 be sufficient cause to the contrary.
Both sections do not make it peremptory to convict straight away on the
e
answer of the accused that he pleads guilty.
In my view that is
acknowledgment of the role of the magistrate or judge to, first, satisfy
himself that the admission
is unequivocal and safe to act on. If he doubts
it he should not convict; he should enter a plea of guilty. A plea of guilty
is an unequivocal admission of the commission of the offence. Accused's
admission must necessarily encompass all the
unambiguous facts that
constitute the offence, that is, all the elements of the offence. It follows
that the court must
take care to ensure that the accused understands the
charge, and to understand what his answer amounts to. In my view, it is
to
be left to the judge or magistrate to decide in each case, how he will
ensure that accused understands the charge
and what the accused's answer
amounts to. An example is the English case of Regina v. Vent
(1935) 25 Cr App R 55. After accused had said he pleaded guilty to murder,
the judge decided to ask one of the counsel in court (accused did not have
counsel) to interview the accused, explain the position to him and the
consequence that would follow. Counsel reported
back to court that he had
done so, but that it had occurred to him in the course of his interview that
accused might
not be fit to plead. The judge called as witness, the doctor
who had compiled report on accused and whose deposition was on
record. The
doctor confirmed his earlier report that accused was sane enough to
understand explanation of a charge and
the result of pleading guilty.
Accused was arraigned again and he still pleaded guilty. He was convicted
and sentenced
to death. On appeal, the appeal was dismissed. The point to
note was that the judge's way of ensuring that the charge was understood
was
to ask counsel to have interview with accused outside the proceeding and
report to court, and to call medical evidence
to clear doubt about accused's
sanity. In fact what is now a standard practice of counsel presenting
detailed summary
of facts was and is still a way of ensuring that all the
elements of the offence are admitted unambiguously. When there was
doubt
about it, in murder cases, the Criminal Appeal Court in England issued
Practice Direction headed: PROSECUTION TO STATE FACTS ON PLEA OF GUILTY.
It was dated
April 1, 1968.
It confirmed the necessity to state the facts that support and confirm the
guilt being admitted.
I
personally approach the duty in two ways. Firstly I consider ther that every
court is bound to ask the accused as to
whether the facts stated by the
prosecution are true and that accused admits them. That is because it is in
the summary
of facts that all the elements of the offence are stated or
ought to be stated. If accused does not admit them I may ask the
prosecution
to reconcile the facts with accused's counsel or I may simply enter a plea
of not guilty and proceed to trial.
Secondly if the accused admits the
facts, but there are features of the facts which appear ambiguous or are too
general
admissions, or do not cover all the elements of the offence charged,
I ask accused with a view to clearing up the ambiguity
and finding out
whether he admits other facts that cover all the elements of the offence. My
experience is that usually
the questions are seldom more than 4 or 5 or 6,
so the worry about time is mere postulation. In fact in Regina v.
Waeho I asked only 5 questions and in Regina v. Anna Katea
only 4 questions. It may well be that the facts in the summary are so clear
and so unambiguous so that admission of them
are unequivocal admission of
the offence. In that case there is no need for the court to ask in
clarification. The court
would have asked in the first place whether the
accused admitted the summary of the clear facts.
<
I
need not say much about calling accused to testify in mitigation. In fact
any witness may be called, but it is not for
the court to insist, it is up
to accused to testify or call witness if he insists on asking the court to
consider in
mitigation facts disputed by the prosecution. I would say that
in the law of Solomon Islands the court is not restricted to
hearing
evidence in mitigation only for the purpose of resolving conflicts of facts
as stated in Regina v. Newton. The authority is the Criminal
Procedure Code. It states at section 281 as follows:
281. The court may, before passing sing sentence, receive such evidence as it
thinks fit, in order to inform itself as
to the sentence proper to be
passed.
In Solomon Islands therefore the provision in section 281, in my view,
canc cancels the guarded approach in
Newton
case. The practice nowadays is to have as much useful information as
possible. In New Zealand victim statement and even
community statement are
admissible. Maori communities are, more and more, taking advantage of the
practice.
I add that there are numerous facts which may be relevant innt in deciding
sentence, which are not relevant to guilt. Some
of them may be contested by
the prosecutions or may have not come to their attention before, as occurred
in the case
of
Regina -v- Anna Katea.
In the case, Mr. Lavery for the accused had stated from the bar that since
the incident of infanticide, the accused
had given birth to 2 children.
Prosecution did not challenge that. After appraisal of the facts, I asked
counsel to confirm
his statement since it would mean that accused had 2
children in 3 years! Counsel for the prosecution instantly rose to inform
the court that accused in fact had only one child since and the child would
be over a year old. Mr. Lavery had to take
further instruction and as the
result, informed the court that the accused in fact had only one child
since. The Court
of Appeal has pointed out the need for evidence of how
serious the offence of rape is regarded in the particular community
- See
Berekame v. DPP cited above. That is authority confirming
that testimony may be heard in mitigation. In fact it is a very well known
practice,
contrary to the first submission of Mr. Lavery. I must add,
however, that the court does not compel accused to testify, but
if accused
insists on the court taking into account facts not agreed to by the
prosecution, the accused has to testify
or the court will not take the facts
into consideration. He is free to abandon the facts.
In Regina v. Waeho Iprompted to ask counsel to l to ask the
accused to testify if he wanted certain facts to be considered in
mitigation,
because those facts were potentially contentious and yet
important in mitigation. It was stated from the bar that the complainant
invited the accused to the sexual intercourse and that the complainant
though under 12 years old had had a regular boyfriend.
I was also aware that
co-accused elected to plead not guilty and might well be the one said to be
the boyfriend. I considered
it proper to make available opportunity to the
prosecution to challenge the evidence. The prosecution did not challenge the
testimony, but it was fair that opportunity was made available. It is
advisable that counsel for accused consults in
advance with the prosecution
about facts in mitigation that counsel intends presenting from the bar,
especially those
that are potentially contentious. If he meets with no
opposition, he may well state them from the bar, upon advising court
that
the prosecution does not intend challenging the facts. If counsel meets with
opposition, but accused insists on
using the particular fact in mitigation,
counsel may call accused to testify or advise accused to abandon the fact.
Dated this 5th
Sam Lungole-Awic-Awich
Judge
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