IN THE COURT OF APPEAL BETWEEN RICHARD NOEL. And MARLON RAWLINS P.C. #16750

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1 REPUBLIC OF TRINIDAD AND TOBAGO Mag. App. No. 63 of 2015 IN THE COURT OF APPEAL BETWEEN RICHARD NOEL Appellant And MARLON RAWLINS P.C. #16750 Respondent PANEL: A. Yorke Soo Hon, J.A. P. Moosai, J.A. APPEARANCES: Mr. R. Isaac for the appellant Mrs. J. Honoré - Paul for the respondent DATE OF DELIVERY: 17 th May 2016 Page 1 of 21

2 JUDGMENT Delivered by A. Yorke Soo Hon, JA; P. Moosai JA. Introduction 1. The appellant was charged for robbery together with two other persons contrary to Section 24(1)(a) of the Larceny Act, Chap 11:12. He pleaded guilty and was sentenced to 12 months hard labour. Facts 2. On Saturday 1 st April 2006, the virtual complainant ( VC ) was sitting on a culvert at the corner of Dandrade and Nyack Streets in Tunapuna when a blue Mitsubishi motor vehicle, PAN 7866 approached him. The appellant and another man alighted from the vehicle and proceeded to rob the VC of his Nokia cellphone and the sum of four hundred and ninety five dollars ($495.00) after which they returned to the vehicle and fled the scene. 3. The VC reported the robbery to the Arouca Police Station. Later that morning, officers on patrol in Curepe intercepted PAN 7866 and arrested the appellant and two other occupants. During a search of the vehicle, the officers found the VC s cellphone. The trio were cautioned and taken to the St. Joseph Police Station. The following day, at La Horquetta Police Station, the appellant and his confederates were put on separate identification parades. The VC positively identified them as the persons who robbed him. 4. On 3 rd April 2006 the appellant and his confederates appeared unrepresented before the Magistrate. They elected to have their trial conducted summarily and all three pleaded guilty. The facts were read and admitted. The appellant admitted that he had one pending matter for larceny. The trio was then remanded pending tracing and sentencing. On 9 th May 2006, the appellant and his co-defendants appeared in court for sentencing. At this stage the appellant was represented by counsel who indicated that he wished to change his plea on the basis that he had not understood the proceedings. The matter was stood down and when it was recalled counsel for the appellant renewed the application for a change of plea. The Magistrate rejected the application and proceeded to sentence the appellant. Page 2 of 21

3 The Magistrate s Reasons 5. In her reasons, the Magistrate stated that when the matter was first called the appellant was unrepresented but indicated that he was ready to enter a guilty plea. The Magistrate asked the defendant if he understood that he was admitting to the offence of robbing the VC of his cellphone and money to which he responded Yes. The Court then proceeded to take the facts. The appellant gave details of his participation in the offence and in mitigation asked for an opportunity to pay a fine in lieu of imprisonment. He also indicated that he was willing to compensate the VC for the phone. 6. When the appellant appeared for sentencing, defence counsel appeared on his behalf and indicated that his client wished to change his plea because he did not understand. The Magistrate rejected the application in light of the procedure which she adopted. Furthermore, after the facts were given, he explained his involvement in the commission of the crime, he being one of the persons who alighted from the car, and gave details that were not even included in the prosecution s case. In the absence of any support for his bare contention that he did not understand, the application was denied. The Appeal 7. At the hearing of the appeal, counsel for the appellant sought leave to adduce fresh evidence to the effect that the appellant s plea had been influenced by a suggestion made to him by a police officer, to wit, an early plea of guilt would result in a fine only. Section 47 of the Supreme Court of Judicature Act Chap. 4:01 confers upon the court of appeal a discretion in a criminal appeal to receive fresh evidence if it thinks it necessary or expedient in the interest of justice. We are of the view that the statutory requirements for the adduction of fresh evidence have not been satisfied. We say so for the following two reasons. Firstly, the proposed evidence was not new, in that it was available at the time of the appellant s trial in the court below and there has been no reasonable explanation for the failure to adduce it there. Blackstone s Criminal Practice 2016 Part Secondly, the evidence was not relevant to the aspect of the Magistrate s decision being challenged, that is her refusal to allow the appellant to change his plea. Page 3 of 21

4 8. Having rejected the application to adduce fresh evidence, we proceeded to hear submissions on the appellant s three grounds of appeal which raised the following questions: i. Was the Magistrate correct in rejecting the change of plea? ; ii. Did the Magistrate balance all of the evidence and give appropriate weight to the various facts in accordance with the relevant principles of law? ; iii. Did the Magistrate sufficiently appreciate the principles of fairness and the right to fair trial, in particular the right to be heard and the right to be represented? 9. In the appellant s written submissions these three grounds are merged into one argument, however, for the purposes of our written judgment we find it convenient to treat with them individually and to take ground three first since it concerns the fairness of the procedure adopted below and establishes the context of this appeal. We will then consider the exercise of the Magistrate s discretion to reject the application to change the plea in light of the procedure which she followed. Finally we will consider how the Magistrate balanced all of the evidence and facts in accordance with the relevant principles of law. Ground 3 - Fairness of the proceedings 10. Counsel for the appellant submitted that the Magistrate deprived the appellant of a fair trial by failing to give him the opportunity to be heard and to be properly represented. He was thereafter given sentence of imprisonment further depriving him of liberty otherwise than by due process of law. 11. Counsel for the respondent submitted that the appellant s plea was unequivocal and the learned Magistrate was bound to accept it. The discretion to accept a change of plea resides with the Magistrate. Even after he had retained counsel, the appellant could not provide a satisfactory reason to move the Magistrate to exercise her discretion in his favour. In support of these submissions counsel cited S (An Infant) by Parsons v Recorder of Manchester (1971) AC 481; R v South Thameside Magistrates Court, ex parte Rowland (1983) 3 ALL ER 689 and Revitt and Others v the Director of Public Prosecutions (2007) 1 Cr App R 19. Page 4 of 21

5 Law and Analysis 12. In every criminal trial there is the need for fairness. Every person arrested or detained in respect of a criminal charge has the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention and the substance of the allegation against him. Fairness also includes the right to retain and instruct without delay legal counsel and the right to a fair and public hearing before an independent and impartial tribunal. These rights are protected by the constitution 1 and it is the responsibility of the court to ensure that each defendant is afforded them. 13. If an accused is not legally represented, the court will, as a matter of practice, seek to give him such assistance in conducting his defence as may seem appropriate: Blackstone s Criminal Practice 2016 Part This may include breaking down the elements of the offence to the accused in terms which he can understand, or granting an adjournment to enable him to fully present his defence and retain legal counsel. 14. Counsel for the respondent referred the court to two very helpful cases. The first is that of R v South Thameside Magistrates Court, ex parte Rowland (supra). In that case, the appellant appeared before the court charged with burglary. She was unrepresented. The charge was read to her and she indicated that she understood it. She consented to summary trial. She entered a guilty plea and also elected to have a similar charge taken into account. The Magistrates informed her that they were considering passing a custodial sentence and asked if in those circumstances she would like to be legally represented. She agreed and sentencing was adjourned for one week to enable her to obtain legal representation. She consulted a solicitor and when she appeared before the Magistrates she sought to change her plea. The Magistrates considered that her plea had been unequivocal and a likely reason for her change was her desire to avoid a custodial sentence and they refused to allow her to change her plea. She sought an order to quash the Magistrates decision. 1 Constitution of the Republic of Trinidad and Tobago Section 5(2) Page 5 of 21

6 15. It was held that the Magistrates were entitled to exercise their discretion not to allow the withdrawal of her unequivocal plea. They were also entitled to balance the instructions the applicant had given her solicitor against the prospect that she had changed her story in order to escape the possibility that she might receive a custodial sentence. 16. We note the existence of the following circumstances in R v South Thameside Magistrates Court, ex parte Rowland (supra): i. The charge was read to the applicant and she indicated that she understood it; ii. The applicant originally refused legal representation; iii. She entered a plea of guilty and asked for a similar offence to be taken into consideration; iv. She was informed that the court was considering a custodial sentence and was asked whether, in those circumstances, she would like legal representation, she assented to such a course and sentencing was adjourned for one week to allow her to obtain legal representation; v. That she had given a statement of guilt in her own handwriting; vi. She had offered and apology for her actions; vii. She had changed her instructions putting blame on a younger girl who had entered the victim s home with her. These instructions resulted in the advice to change her plea. 17. The other important case to which we were referred was Revitt and Others v the DPP (supra). Three appellants were charged for dangerous driving and related offences. They appeared unrepresented before the justices and the legal advisor to the bench explained the charges to them and asked if they understood that charge, to which they responded in the affirmative. They were then advised of their right to be legally represented and advised that it would be in their best interest as the charges were serious and could attract custodial sentences. They were also offered an adjournment to seek legal representation but they declined that offer. They then pleaded guilty to all the charges and the justices retired to consider sentence. Upon the justices return to court, the appellants and their solicitors were present. An application was made to withdraw the guilty pleas on the basis that the Page 6 of 21

7 appellants had not understood the charge and had thought that they had been charged with causing a nuisance. 18. Their applications to vacate the pleas were refused on the ground that they understood the charges and understood that they had a right to legal representation and had entered their pleas unequivocally and with knowledge of the potential sentences. The court held that if after an unequivocal plea of guilty had been made, it became apparent that the appellant had not appreciated the elements of the offence to which he had pleaded guilty it was likely to be appropriate to allow him to change his plea. Such a situation should be rare since it was unlikely to arise where the defendant was represented, and where he was not, it was the duty of the court to make sure that the nature of the offence was explained to him before the plea was accepted. Similarly, if the facts relied upon by the prosecution did not add up to the offence charged, justice would normally demand that the defendant be permitted to withdraw his plea. The onus lay on the party seeking to vacate the plea to show that justice required that the change be entertained. 19. We make the following observations from the facts in Revitt (supra): i. The appellants were unrepresented but the bench legal advisor explained the charges to the defendants and after explaining each charge asked each defendant if he understood each charge; ii. Each defendant indicated that he did; iii. The legal advisor explained to the defendants their rights to advanced disclosure and explained its meaning and that any solicitor representing them would ask to see them. Each defendant said they understood, but declined the offer; iv. The legal advisor explained to the defendants that the charges were serious and explained that the starting point for sentencing either on a guilty plea or if convicted on trial was a custodial sentence; v. The advisor further advised the defendants that they had the right to be legally represented and it was in their interest to be represented and again explained that they could receive a custodial sentence if convicted; Page 7 of 21

8 vi. vii. viii. ix. Each defendant in turn was offered the opportunity of an adjournment to seek legal representation. Each defendant declined that offer; The charges were then put to the appellants by the bench legal advisor and each defendant pleaded guilty; The bench legal advisor again explained to the defendants in the absence of the Magistrates that they could be sentenced to custodial terms. When the Magistrates returned the defendants were represented by solicitors who made an application for the withdrawal of the pleas stating that the defendants believed they were charged with nuisance. 20. The same basic principles govern guilty pleas at summary trial as govern such pleas at trial on indictment. The law is helpfully summarised in Blackstones Criminal Practice 2016 at Parts D12 and D22 as follows: If the accused pleads guilty, the prosecution are released from their obligation to prove the case. There is no need to empanel a jury, and the accused stands convicted simply by virtue of the word that has come from his own mouth. The only evidence the prosecution then need call in the ordinary case is that of the accused's antecedents and criminal record D12.73 It is essential that the plea be unequivocal. The CrimPR, r. 24.7(1)(b), says that the court must be satisfied that the guilty plea 'represents a clear acknowledgement of guilt'. If, when the charge is put, the accused does not answer directly or qualifies what purports to be a guilty plea with words suggesting that he is really putting forward a defence, then the court must try to resolve the ambiguity. If the plea remains ambiguous, the court must reject it and hear evidence before convicting or acquitting. D Once an unequivocal plea of guilt is entered, the presumption of innocence ceases to apply and the defendant can be sentenced on the basis that he has been proved guilty: Revitt and Page 8 of 21

9 others v Director of Public Prosecutions - [2006] 1 WLR In the case of an unrepresented defendant, care must be taken to ensure that he fully understands the elements of the offence to which he is pleading guilty, and this is particularly the case where a possible defence is disclosed in the evidence: R v Griffiths (1932) 23 Cr App Rep The cases of Revitt and South Thameside Magistrates Court ex parte Rowland are instructive because they show the procedural safeguards which must first exist before an unequivocal plea of guilt can be accepted. The need for such safeguards is increased in cases where the accused is not legally represented for as Lord Morris of Borth y Gest observed in S (An Infant) by Parsons v Recorder of Manchester (1971) AC 481: The duty of any court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But it also may be confessed. The court will however, have great concern if any doubt exists as to whether a confession was intended or whether it ought really ever to have been made The procedural safeguards set out in Revitt and South Thameside are intended to reduce or remove altogether any doubt that a person has pleaded guilty to charges of which he is innocent. By adopting these procedures the court can be confident in placing reliance on his plea as a clear acknowledgment of guilt. These safety measures prior to the acceptance of a guilty plea, forms a necessary counterbalance to preserve fairness and to ensure that the plea is unequivocal. 23. Based on our observations in Revitt and South Thameside Magistrate s Court, we consider the following guidelines as capturing the minimum procedural requirements to be adopted by Magistrates when considering whether to accept a guilty plea from an unrepresented defendant: Page 9 of 21

10 i. The charges should be read to the defendant and the elements of the offence should be explained to him in terms which are sufficiently simple for him to understand; ii. Having explained the charges, the Magistrate should enquire of the defendant whether he understands the charges; If he does not understand or is unsure, further explanation may be warranted; iii. The defendant should be given an opportunity to retain and instruct legal counsel; iv. The defendant should be informed that he may seek an adjournment for the preparation of his defence; v. The defendant should be specifically cautioned of the consequences of his plea and the risk of a custodial or severe sentence; 24. Where these steps are adopted the Court of Appeal can have confidence in the safety of the plea and the conviction recorded since the burden will then lie on the defendant to adduce what would have to be compelling evidence to establish that his plea was entered in ignorance. In the absence of such evidence it will be difficult for a defendant to argue that the Magistrate was wrong in accepting the plea. Moreover, ensuring that a defendant fully understands his rights and the consequences of the plea narrows the grounds available to the defendant if the Magistrate is later called upon to exercise his discretion to entertain a change. It goes without saying that magistrates should make a written record of the procedure adopted to avoid any dispute as to what transpired. 25. In this case, the record of proceedings is very brief. The entry on the record sheet states: 3/4/06 Complainant appears. #1 3 accused appears Unrepresented ready to proceed. #2 date of birth 12/07/88. #1 3 Charge read accused cautioned, Prosecution recommends summary trial, accused elects summary trial and pleads guilty. #1 3 facts taken and admitted. #1 & 3 Page 10 of 21

11 remanded in custody 7/4/06 for tracing and sentence. #2 remanded in custody 7/4/06 at YTC for tracing. 2 The fact that the procedure leading to the acceptance of a plea of guilty is captured so briefly causes us some concern. The Magistrate expanded on this in her reasons where she stated: On the accused appeared in Court and although unrepresented, indicated he was ready to deal with his matter. The charge was read and the accused cautioned. The prosecution made a recommendation for summary trial; the Accused elected summary trial and pleaded guilty. As per my practice, when someone is unrepresented and pleads guilty, I asked the Defendant if he understood that by pleading guilty, he was admitting to the offence charged, that is, he robbed Mr. David of the cellphone and money. The defendant responded yes and in these circumstances I proceeded to take the facts. 3 The facts related by the prosecution are then repeated verbatim. The Magistrate then continues: The Defendant admitted the facts and proceeded to explain his involvement in the matter. He gave details of activities that morning and his participation in the offence. When he was allowed the opportunity to mitigate, he indicated that he had one matter pending for larceny; he wished to be allowed an opportunity to pay the virtual complainant for the phone. He also requested that he be fined and not imprisoned. When I inquired about the tracing, the defendant s tracing was not available. 4 2 Record of Proceedings Pg 2 3 Record of Proceedings Pgs Record of Proceedings Pgs 11 Page 11 of 21

12 26. Our first concern arises from the fact that the record does not indicate that the appellant was asked whether he understood the charges against him. It simply states that the charges were read to him and thereafter he pleaded guilty. In our view this is not enough. The standard of fairness in criminal proceedings requires that a defendant understand the substance of the allegation against him so that he may make a proper answer to the charge. If he does not understand the nature of the charge against him then he cannot realistically enter a plea that will be truly indicative of guilt. The Magistrate s reasons do not contradict the bare entry in the record, they repeat that the charge was read and the accused was cautioned, after this the prosecution elected summary trial and the accused pleaded guilty. 27. After the plea was entered, the Magistrate explained that she asked the appellant if he understood that by pleading guilty he was admitting the offence as charged. While this is commendable, it still falls short of her responsibility. Firstly, the explanation does not speak to the elements of the offence, nor to the consequences attached. In the context of a charge which carries a lengthy term of imprisonment, there is no discussion at all of the possible results. Furthermore, we cannot conduct a fair evaluation of whether the accused really understood the charge against him since the only material before us is the Magistrate s written reasons stating that he simply responded Yes. 28. We acknowledge that it is the duty of the Magistrate to accept an unequivocal plea of guilty. However, the process of eliciting that plea must at the very least test the integrity of the defendant s statements. The benefits of a system that allows defendants who are prepared to willingly admit guilt to have their cases quickly disposed of are obvious. However, it is imperative that justice is never sacrificed for expediency. It is the paramount duty of the criminal justice system to put procedural steps in place in order to ensure that the innocent are acquitted and that convictions are safe. If a conviction is recorded, the Court must be sure of the defendant s guilt and this means accepting a plea when the defendant is in fact guilty and wants to enter such a plea. While we are concerned with the swift dissemination of justice the court must ensure that this justice is never such a hustled affair that it results in the deprivation of fairness in the process. On the face of it, the record does not show that Page 12 of 21

13 sufficient procedural steps were taken to ensure fairness to the appellant before the plea was taken, or that the plea was based on a clear acknowledgement of guilt. 29. Our second concern is that neither the record nor the Magistrate s reasons state that the appellant was advised of his right to seek legal advice before entering a plea. At no point was he advised of his right to seek an adjournment to do so. In the case of unrepresented litigants, especially in criminal trials where the liberty of the defendant is at stake, the right to retain and instruct counsel is indispensable and it is the duty of the court to ensure that the defendant has an opportunity to do so. This is borne out in the fact that as soon as counsel had the opportunity to take instructions, the application for a change of plea was made. 30. Had the appellant been provided with legal advice or at least advised of his right to seek advice, it would enhance the strength of his plea. The advantage of allowing the defendant to seek legal advice before the plea is taken is that any plea he enters thereafter is less likely to be overturned at a later stage since it will be presumed to have been made voluntarily, after careful consideration and explanation of the case against him and the legal consequences and possible sentence that flow from such a plea. Even if he rejects the advice or the opportunity to obtain counsel, the Magistrate is protected since procedurally, steps would have been taken to aid him in presenting any defence he may have. This would also relieve the Magistrate of the unenvious task of trying to balance his duty to assist the unrepresented defendant without descending into the arena. In our view, the procedure adopted in this case fell short of ensuring fairness to the accused. We therefore find merit on this ground. Ground 1 - Whether the Magistrate was correct in her non-acceptance of the appellant s request to change his plea; 31. Counsel for the appellant submitted that although the court is not bound to allow a plea to be withdrawn once it has been made, the interests of justice requires that in an appropriate case an accused person should be allowed to withdraw the plea of guilty: R v McNally (1954) 2 AER 372 There are several situations where a Magistrate ought to allow a Page 13 of 21

14 defendant to change his plea such as where the plea is entered through mistake or there are circumstances affecting the integrity of the plea. 32. He further submitted that there must be shown to be some circumstances which indicate that the plea of guilty was not really attributable to a genuine consciousness of guilt: R v Michael Peter Webb and Victoria J. Haye (1992) 64 A Crim R 38. The burden rests on the prisoner to persuade the court that he has suffered a miscarriage of justice. However, there is no absolute obligation for the accused to give evidence and it is for the Court to determine whether there is sufficient material before it to deal with the application. 33. Counsel for the respondent submitted that the discretion to accept a change of plea resides in the Magistrate and is one which should only be exercised in clear cases and very sparingly: S (An Infant) by Parsons v Recorder of Manchester (supra) At the hearing of the change of plea application, attorney for the appellant advanced no explanation other than the fact that he did not understand. There is no question arising as to whether the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it. In the facts taken and admitted it was made clear that he was being charged as a principal, i.e. As one of the participants who actually got out of the car and confronted the victim. 34. Counsel further submitted that the Magistrate in her reasons indicated that the defendant admitted the facts and gave details of his activities and participation in the offence. Therefore there is no basis for saying that he was unaware of the nature of the charge. Further, even before his admission, the Magistrate asked him whether he understood that a plea of guilty would mean that he was admitting to the offence of robbing the virtual complainant and taking his cellphone and money. 35. The general rule is that an appellant who has pleaded guilty can only appeal against sentence. Despite such a plea, the court of appeal will normally review a conviction when it raises an issue to be tried. It is trite law that a court has a discretion to allow the accused to withdraw a guilty plea at any stage before sentence is passed. Only rarely will it be appropriate for a trial judge to exercise his discretion to permit a change of plea: R v Drew Page 14 of 21

15 - [1985] 2 All ER Provided the court at first instance recognised that it had a discretion to allow a change of plea and applied the correct principles in determining the application, the Court of Appeal will not interfere with the trial judge's exercise of discretion: Blackstone's Criminal Practice 2016 D12; Dodd (1981) 74 Cr App R 50; Cantor [1991] Crim LR 481; Anjum [2004] EWCA Crim 977; Towers [2004] EWCA Crim Primarily, the discretion is one that ought to be exercised sparingly. The rationale behind this is plain. Were it otherwise the integrity of the criminal justice system would be severely compromised since it would enable defendants to escape conviction based on a clear admission of guilt simply because they had a change of heart or for reasons that would otherwise do nothing to diminish their criminal liability. Criminal justice must be certain, however, it must also be fair, and therefore an accused is entitled to change his plea if there is good reason for so doing, for example if he has made a genuine mistake. This however must be clearly established before the change can be made and it is for this reason that the function is discretionary and must be exercised in relation to evidence. 37. Even where a plea is unequivocal the Magistrates nevertheless have a discretion to allow a plea of guilty to be withdrawn at any time before sentence in the appropriate circumstances: S (an infant) v Manchester City Recorder [1969] 3 All ER In that case the appellant who suffered from a mental defect and had a history of confessing to offences which he had not committed, pleaded guilty to assaulting a young woman. At arraignment the Magistrate was superficially aware of his mental condition but had not been informed of his history or the degree to which his impairment would affect his fitness to plead. It was only after the plea had been entered and the conviction recorded, the true picture came to light, however at this stage the Magistrate considered himself functus and unable to entertain a change of plea. Lord MacDermott said at 1236: Every experienced judge knows that, even in uncontested matters, the truth has a habit of emerging in bits and pieces, and that the legal ingredients of the offence charged may not be fully understood by the accused. Pleas of Page 15 of 21

16 guilty of stealing where there has been no intention to deprive the owner permanently, or of receiving where there has been no guilty knowledge at the time of receipt are but notorious examples of what has happened and can still happen through this sort of ignorance or misunderstanding which, be it noted, may not proclaim itself when the plea is made. The risk of this is certainly not rare enough to be left out of account. Legal aid may reduce it, but it would be rash to assume that it will eliminate such mistakes entirely; and it must also be remembered in this connection that quite a number of modern statutory offences are sufficiently complex in their makeup to confuse both the lay and the learned. Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted on and a changed plea of not guilty be allowed where the interests of justice so require? 38. The court acknowledged that a mistaken acceptance of guilt may not always be apparent and that in the exercise of the discretion this risk must be taken into account. Where such a mistake does come to light it is the duty of the Magistrate to entertain the change of plea. Although the discretion ought to be exercised sparingly, where material comes to light after the conviction has been recorded, the proper administration of justice requires that it be considered and where appropriate a change of unequivocal plea should be permitted. 39. There must be some material to establish that the unequivocal plea may have been in fact equivocal or otherwise unsafe to justify the exercise of the discretion in favour of the defendant. As in McNally, where the defendant could not possibly have misunderstood the nature of a straightforward charge and had unequivocally admitted guilt when the indictment was put to him, the court of criminal appeal approved the trial judge's decision to refuse a change of plea. Moreover, where the change of plea appears to be a strategic ploy to avoid sentence, the court is entitled to take this into consideration in assessing the Page 16 of 21

17 validity of the unequivocal plea that came before. Where the application is motivated by strategy and not genuine innocence or mistake the court would be correct to reject it. 40. Another concern we have in this case relates to the record of what transpires after the plea was entered. The reasons state that the defendant: i. proceeded to explain his involvement in the matter ; ii. gave details of his activities that morning and his participation in the offence ; and iii. in his mitigation he went on to explain his involvement of the crime, the Defendant being one of the persons who alighted from the car and announced the robbery and gave details that were not even included in the prosecution s case. 5 The Magistrate s recollection of the proceedings are reflected in her reasons, however, there is no record of what the appellant actually said in court. Without a transcript we are left to speculate on what explanation he may have given of his involvement since the record and the reasons are silent. Although the Magistrate stated that he gave details of his participation in the offence, the reasons are silent as to the nature of his participation. Similarly, although the Magistrate stated that the appellant gave details of the incident, these were not included in the prosecution s case. Since we have no record of what those details are, we are not in a position to assess how this supports the safety of the conviction. 41. In the absence of these details we are unable to say whether the defendant directly raised an issue to be tried. We are further constrained in our assessment of whether the plea was equivocal. The appellant s testimony may have related to the elements of the offence and supported his innocence, however, we cannot say since both the reasons and the record are silent in this regard. 42. In resolving this issue we derive some assistance from R v Holden [2009] VSCA 254 an authority originating from the Court of Appeal of the Supreme Court of Victoria. In that case, the appellant pleaded not guilty to murder but guilty to manslaughter. The jury 5 Record of Proceedings Pg 11 Page 17 of 21

18 acquitted him of murder and convicted him for manslaughter. In his appeal, he argued that his guilty plea ought to be set aside because it was not made by the exercise of a free and informed choice but occurred as a result of pressure brought to bear on him by the trial judge and his legal representatives. 43. He alleged that he pleaded guilty to manslaughter when he was not mentally fit to make an informed choice as to whether he should do so, that he was in fact acting in self - defence when he killed the victim and that he had at all times intended to plead not guilty to murder. He further claimed that his plea of guilty should be set aside since after he had pleaded, he told his legal representatives that he wanted to withdraw his plea but was not informed that this might be possible. He only became aware of his right to withdraw his plea after he had been sentenced. 44. The Court of Appeal first considered the voluntariness of the plea and the circumstances in which it had been made. Neave JA in delivering the judgment of the court stated: 67. In R v Forde [1923] 2 KB 400 Avory J said that: 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 he was guilty of it, or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged. 68. It is now well-established that an appellate court s power to set aside a guilty plea is not limited to the situations described in R v Forde, and that a plea may be set aside if the circumstances in which the appellant pleaded guilty have given rise to a miscarriage of justice. In KCH (2001) 124 A Crim R 233 Ipp AJA commented that: There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own. Page 18 of 21

19 69. Although a plea of guilty will be set aside if it was made in circumstances resulting in a miscarriage of justice, there is a strong public interest in restricting appeals against conviction following a deliberate plea of guilty R v Coffey (2003) 6 VR 543, 546 (Emphasis ours) 45. This reasoning is compatible with the reasoning in S (an infant) and R v McNally which both acknowledge that a Magistrate may entertain a change of plea in the interests of justice. As we have observed above, the circumstances under which this appellant s plea was accepted were procedurally deficient and did not provide adequate safeguards to ensure that it was a fully informed decision and acknowledgement of guilt. Furthermore, the absence of the appellant s explanation of his involvement in the commission of the offence means we are unable to test whether the plea was unequivocal. 46. We have no independent record to assist us with the evidence which was before the Magistrate when she exercised her discretion to reject the change of plea. However, in our capacity as a court of review and in light of the procedural deficiencies, we think that the factors in this case would weigh in favour of allowing the appellant to change his plea. We are aware that at the time of the application, the procedural guidelines we have set out above would not have been in the contemplation of the Magistrate. However, we think that to allow the appellant s guilty plea to stand would occasion a miscarriage of justice. We therefore uphold this ground. Ground 2 The Magistrate failed to balance all of the evidence and give appropriate weight to various facts in accordance with the relevant principles of law; 47. In light of our findings in relation to grounds 1 and 3 there is no need to address this ground save to acknowledge that our review of the reasons show that the plea was not properly accepted. The circumstances under which the plea was received in this case caused us great concern and in our view they undermined the safety and integrity of the plea. We are therefore not satisfied of the safety of the conviction. Retrial Page 19 of 21

20 48. In Reid v R (1978) 27 WIR 254 the principles relevant to the question whether a Court of Appeal should direct a retrial were set out by Lord Diplock as follows:- i. The seriousness and prevalence of the offence; ii. The expense and the length of time for which the court and jury would be involved in a fresh hearing; iii. Whether the interests of justice require that the accused undergo the ordeal of a second trial; iv. The length of time that has elapsed between the offence and the new trial if one be ordered; and v. The strength of the case presented by the prosecution at the previous trial. These principles recited do not constitute an exhaustive list: The weight to be attached to each of them in any individual case will depend not only upon its own particular facts but also upon the social environment in which criminal justice falls to be administered to-day. As their Lordships have already said, this makes the task of balancing the various factors one that is more fitly confided to appellate judges residing in the island. 49. Robbery is a serious offence. The maximum sentence available upon summary conviction is 10 years imprisonment which reflects the gravity of the crime. It is a serious offence and there is a worrying trend that shows it is being carried out with an alarming frequency. We think the prosecution s case was a reasonably strong one which was based on the virtual complainant s identification evidence and was supported by the evidence that the appellant and his cohorts were found in recent possession of the stolen cellphone. We also note that the accused initially pleaded guilty and therefore the matter did not proceed to trial and he was released on bail immediately after sentence. This was a relatively straightforward summary matter and so the question of the expense associated with empanelling a jury does not arise, and we do not think that it would be an unreasonable taxation of judicial resources. In the circumstances, notwithstanding the length of time that has elapsed since the offence, we are of the view that justice ought to be allowed to run its course and therefore a retrial is appropriate in this case. Page 20 of 21

21 Disposition 50. The appeal is allowed, the orders of the Magistrate are set aside. The matter is remitted for retrial before a new Magistrate. Dated: 17 th May 2016 A. Yorke Soo Hon Justice of Appeal P. Moosai Justice of Appeal Page 21 of 21