Court has a duty to ensure a plea of guilty is unequivocal when an Accused Person is unrepresented
Simon Gitau Kinene v Republic
Criminal Appeal No 9 of 2016
High Court at Kiambu
October 25, 2016
J Ngugi, J
Reported by Phoebe Ida Ayaya
Criminal law- mental illness-record of mental illness- whether the trial court record did not have any indication that there was an attempt to bring to its attention the suspicion that the appellant was mentally ill-Penal Code section 11; Criminal Procedure Code section 162
Criminal procedure –pleas-plea of guilty-equivocal plea-validity of an equivocal plea- whether the plea of guilty by the Appellant was equivocal and if the Accused person understood the consequences of that plea – Criminal Procedure Code
Criminal law-sentencing- principles of sentencing- whether the sentence meted to the accused was harsh and disproportionate -Penal Code section 26(2)
The Appellant appealed against both conviction and sentence of the Gatundu Principal Magistrate’s Court Criminal Case No. 12 of 2016. The Appellant was arraigned before the Trial Magistrate on January 6, 2016 charged with a single count of trafficking in narcotic drugs (bhang) contrary to section 4(a) as read together with sub-section 2(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The Appellant argued that it was wrong for the Trial Court to have proceeded with the trial without first calling for a mental assessment report. Had the Trial Court done that, it would have discovered that the Appellant was mentally ill and therefore unfit to stand trial thus the current appeal.
Whether the Trial Court record did not have any indication that there was an attempt to bring to its attention the suspicion that the Appellant was mentally ill
Whether the plea of guilty was equivocal and if the Accused person understood the consequences of such a plea according to section 11 of the Penal Code
Whether the sentence meted to the accused was harsh and disproportionate
Relevant Provisions of law
Section 11 provides as follows:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
Section 26(2) provides as follows
Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.
Criminal Procedure Code
Section 162 reads as follows:
162. (1) When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
Narcotic Drugs and Psychotropic Substances Control Act
Section 4(a) provides that:
Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—
a. in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life.
The law is that every accused person is presumed to be of sound mind under section 11 of the Penal Code. The burden is on the Accused Person to rebut this presumption. However, the Court is obligated under section 162 to take action – for example by ordering a mental assessment – where it comes to the attention of the Court that the Accused Person may be of unsound mind.
The Trial Court could not be faulted for proceeding as it did in the circumstances. There was simply no material brought to the attention of the Trial Court to suggest that the Appellant was of unsound mind to warrant further inquiry by the Court. In the circumstances, that ground of appeal was unavailing to the Appellant.
When a person was charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that was not possible, then in a language which he could speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused admitted all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty.
The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement was complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused did not agree with the statement of facts or asserts additional facts that, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused did not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must be recorded.
The first point for analysis was an important point of departure namely the trite law to the effect that whether a guilty plea was unequivocal or not depended on the circumstances of the case. Differently put, an appellate or a revising court was to take the totality of circumstances into account in determining the equivocality or otherwise of a guilty plea.
With the totality of circumstances test in mind, the following observations were appropriate from the proceedings in the Magistrates’ court. First, although the Court record indicated that the charge and every element thereof was stated by the Court to the accused person in the language he understood, it was critical that the Court did not state which language was used to explain. Second, while Adan Case stipulated the salutary practice that the Court records the words of the Accused Person verbatim, that did not happen in the instant case. Instead, the Magistrate recorded the response in English: “It is not true.”
The fact that the Accused engaged in mitigation could be an indication that he understood what was going on but a guilty plea should not be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal. It should be even more so when the Accused faces a serious charge capable of attracting custodial sentence.
Extra caution needs to be taken in the case of undefended Defendants who plead guilty. Where an Accused Person was unrepresented, the duty of the Court to ensure the plea of guilty was unequivocal was heightened.
Where there was an unrepresented Accused charged with a serious offence, care was always taken to see that the Accused understood the elements of the offence, especially if the evidence suggested that he had a defence. To put it plainly, then, one may add that where an unrepresented Accused Person pled guilty to a serious charge that was likely to attract custodial sentence, the obligation of the Court to ensure that the Accused Person understood the consequences of such a plea was heightened. In the present case, the Court took no extra effort to ensure that. In the circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, the Court was to warn the Accused Person of the consequences of a guilty plea. It was unsafe to uphold the guilty plea in the circumstances.
Section 4(a) does not impose mandatory sentence. Since given that the conviction on a guilty plea was not safe in the circumstances automatically quashed the sentence as well, for future guidance it was important to remind trial courts that the provisions of section 4(a) of the Act merely give the Trial Court discretion in sentencing and did not impose any minimum sentences. Trial Courts might be well advised to bear in mind the provisions of 26(2) of the Penal Code.
The section made it clear that unless the law prescribing the sentence expressly provided otherwise, a court could sentence an Accused Person to a shorter period than that prescribed in the law prescribing the sentence. In other words, the Trial Court was clothed with the discretion to impose a sentence of imprisonment which was shorter than that prescribed except where mandatory minimum sentences were expressly prescribed.
i. The guilty plea entered in Gatundu Law Courts in Criminal Case no 12 of 2016 set aside. In its place a plea of not guilty shall be recorded in the case.
iii. The sentenced imposed on the Appellant set aside.
iv. The Appellant shall be released from Prison forthwith and shall, instead, be placed on remand pending his presentation before the Magistrates’ Court for a retrial.
v. The Appellant shall be presented before the Principal Magistrate, Gatundu Law Courts on Thursday, October 27, 2016 for directions. The case shall be allocated to a magistrate other than the Honourable W. Ngumi who initially heard the case.
vi. The Deputy Registrar directed to send back the Trial Court file in Criminal Case No. 12 of 2016 and a copy of this file and ruling to the Principal Magistrate’s Court, Gatundu for compliance.