Court of Appeal of Fiji

Appeal grounds - 14/06/2019

Ground 1

THAT the Learned Trial Judge erred in law and in fact when he proceeded with the hearing of the matter pursuant to Section 14(2)(h)(i) of the Constitution whereby the requirements of the same was not satisfied, whereas the Court failed to ascertain beyond doubt that the Appellant was aware of the date of trial but had chosen not to attend.

Ground 2

THAT the Learned Trial Judge erred in law and in fact when he failed to consider the second limb of Section 14(2)(h)(i) of the Constitution as he failed to satisfy the requirement of a summon or similar process to be served requiring his attendance whereby the similar process would include a bench warrant report to be provided to Court whereby the Appellant was arrested after the trial was concluded.

Ground 3

THAT the Learned Trial Judge erred in law and in fact when failed to consider the provision of Section 171(i)(4) of the Criminal Procedure Act of 2009 which clearly provides as follow:

Section 171(1)(a):-

“If at the time or place to which the hearing or further hearing is adjourned. The accused does not appear before the Court which has made the order of adjournment, the Court may (unless the Accused is charged with an indictable offence) proceed with the hearing of further hearing as if accused were present.”

The failure to consider the above provisions that provide the appellant’s rights to a fair trial as stipulated under section 15 of the constitution has been breached thus rendering the conviction unsafe and the trial based to the appellant.

Appeal grounds - 27/8/20

Ground 1

THAT the Learned Trial Judge erred in law and in fact when he failed to consider the provision of Section 172 of the Criminal Procedure Act 2009.

Ground 2

THAT the Learned Trial Judge erred in law and in fact when he failed to consider the provision of Section (14)(2)(l) of the Constitution of Fiji.

Ground 3

THAT the Learned Trial Judge erred in law and in fact when he failed to consider the provision of Section (15)(1) of the Constitution of Fiji.

[7] The evidence of the case had been summarised by the learned trial judge as follows in the sentencing order.

‘5. The facts of the case were that the complainant was running a car wash at Kinoya. On the 11^th of March, 2018,complainant nant was at the said ‘car wash’ with her co-worker and her one year old daughter. In the morning, both of you approached the room of the16;car wash’ and pulled open the grill door. You forc forcefully entered the room and took the days’ cash collection from the cashier, three mobile phones and fled the scene in a taxi when the complainant was yelling for help in fear.’

Grounds of appeal

[8] These grounds of appeal could be considered together. The appellant argues that his rights under section 14(2)(h)(i) of the Constitution had been violated as a result of the trail against him in absentia on the premise that there was no summons, warrant or a similar process served on him and the court had failed to ascertain whether the appellant was aware of the trial date on 29 March 2019 because he had 05 pending cases against him in Suva and Nasinu Magistrates courts to attend. His position is that he had forgotten to attend the High Court and the cause for the absence in court was beyond his control. He argues that the trial judge should have adjourned the matter and served summons, warrant or similar process on him before exercising his discretion to proceed with the trial in his absence. In gist, the appellant seems to submit that his absence from court was not deliberate but unintentional the reason being that he had forgotten this particular date due to his multiple cases in other courts.

[9] Unfortunately, the respondent in its written submissions or oral submission failed to shed any light on what had transpired in court on 29 March 2019 which according to the appellant appears to be the date on which the trial judge had decided to proceed with the trial in his absence. Whether on 29 March 2019 (if not on another day) the prosecution had applied for the appellant to be tried in absentia in terms of Article 14 (2((h)(i) of the Constitution and what matters had been considered by the trial judge before allowing it is also not ascertainable due to the non-availability of trial proceedings at this stage. However, the judgment and the sentencing order shed sufficient light on what had transpired relating to the trial judge’s decision to go ahead with the trial against the appellant in absentia.

[10] At paragraphs 39 of the summing-up the trial judge had cautioned the assessors about evidence led against the appellant who did not test it in cross-examination as he was not present in court during the trial. The trial judge at paragraph 52 referred to the appellant’s election to be silent and cautioned the assessors not to draw any adverse inference arising therefrom and told them that despite his absence from court the prosecution still had to prove that the appellant was one of the offenders who took part in the robbery (see paragraph 59).

[11] The trial judge had stated in the judgment as follows:

‘2. ‘The 1st accused was tried in absentia as he waived his rig be pree present at his trial. The assessors were cautioned as to the weakness of the evidence against the 1st accused it wa tested by cross examination. The assessors were properly directed not to draw a aw a negatnegative inference against the first accused merely because he failed to attend court to face his trial.’

[12] Paragraph 02 of the sentencing order is as follows:

‘2 Mataiyasi Navugona, you appein court and pleadeleaded not guilty to the charge. Thereafter you absconded and failed to appear in court on the date assigned for trial. The bench warrant issy this court to arrest you could not be executed. The courtcourt proceeded to trial in your absence when it was satisfied that you were deliberately absconding court proceedings and that your presence cannot be secured in due course. At the ensuing trial you were found guilty and convicted as charged.’

[13] Section 14(2)(h)(i) is as follows:

‘Every person charged with an offence has the right to be present when being tried, unless (i) the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend; or (ii)............’

[14] In the absence of any other provision in the Criminal Procedure Code, 2009 regarding an accused being tried in absentia in the High Court, section 14(2)(h)(i) of the Constitution would provide guidance to court as to the conditions that should be satisfied before an accused can be tried in his absence. Those conditions are that (i) the accused should be served with summons or similar process requiring his attendance at the trial and (ii) despite summons or similar process the accused should have chosen not to attend (waiver of the right to be present). Unless the court is satisfied that both these preconditions have been fulfilled, the right guaranteed by section 14(2)(h)(i) of the Constitution cannot be taken away and an accused cannot be tried in his absence in the High Court.

[15] The first of these conditions is an obligation on the part of the court envisaging sufficient notice on the accused that he should appear at the trial or a direction on the authority holding him to produce the accused in court for the trail while the second condition is a conscious, deliberate or voluntary decision on the part of an accused not to present himself for the trial. However, once such notice has been given to an accused, if not detained under the authority of court, it is his responsibility to make himself available to face trial on every occasion without any further notice unless prevented from doing so for reasons beyond his control. Therefore, section 14(2)(h)(i) of the Constitution is no license for an accused to evade process of court and subvert the course of justice.

[16] The common law sheds more light on this issue. It appears that even when an accused waives his right to be present the court is not necessarily bound by law to proceed with the trial without the accused. Discretion is vested in the trial judge to decide whether the accused should be tried in his absence or not. In R v Abraham #160; 21 43

‘The primary and governing principle is, I think, that in all criminal trials the prisoner has a right, as long as he conducts himself decently, to be present, and ought to be present, whether he is represented by counsel or not. He may waive this right if he so pleases, and may do this even in a case where he is not represented by counsel. But then a further and most important principle comes in, and that is, that the presiding judge has a discretion in either case to proceed or not to proceed with the trial in the accused's absence.’