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Chand v The State [2001] FJHC 130; HAM0017.2000s (8 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CRIMINAL APPEAL NO. HAM 17 OF 2000
(On an appeal from Suva Magistrate's Court No. 3995/94)

BETWEEN:

PREM CHAND
father's name Gobardhan
Appellant/Applicant

AND:

STATE
Respondent

M.B. Patel for the Appellant
K. Tunidau for the Respondent

Dates of Hearing: 6^th and 20^th June 2001
Date of Judgment: 8^th November 2001

JUDGMENT

This is an application for leave to appeal out of time from a decision of the Suva Magistrate's Court on the 30^th of April 1997. On that day the Court found the Applicant guilty of one count of official corruption contrary to Section 106 (a) of the Penal Code Cap. 17, one count of forgery contrary to Section 336(3) (c) of the Penal Code and one count of uttering a forged document contrary to Section 343(1) of the Penal Code.

He was sentenced to a total term of five years' imprisonment being four years on the charge of official corruption consecutive with a sentence of twelve months on the charge of forgery and twelve months concurrent with the first and second counts on the charge of uttering a forged document. Particulars of the offences were as follows:

On the first count:

"PREM CHAND f/n Gobardhan at Suva in the Central Division, between 3^rd August 1993 and 6^th August 1993, being employed in the public service, and being charged with the performance of any duty by virtue of such employment corruptly obtained property, namely $100 in cash for himself, on account of anything already done, namely altering the sentence of imprisonment on warrant of commitment number 4619/93 by him in the discharge of the duties of his office."

On the second count:

"PREM CHAND f/n Gobardhan at Suva in the Central Division, between 1^st day of July 1990 and 2^nd day of December 1991, with intent to defraud, forged Fiji Institute of Technology Certificate No. 001251 in the name of PREM CHAND f/n Gobardhan."

On the third count:

"PREM CHAND f/n Gobardhan at Suva in the Central Division, between 19^th day of July 1991 and the 2^nd day of December 1991, knowingly and fraudulently uttered a forged document, namely Fiji Institute of Technology Certificate No. 001251 in the name of PREM CHAND f/n Gobardhan."

The hearing began on the 16^th of August 1995 when the Applicant was represented by counsel, Mr. Mehboob Raza.

Only one prosecution witness was called and the hearing was adjourned until the 6^th of August 1996 for mention. On that day the trial Magistrate advised the parties that the trial would be completed on the 25^th, 26^th and 27^th of November 1996. There is evidence before this Court that the Magistrate warned the Applicant about the consequences of his failing to appear for the resumption of the trial namely that he would be deemed to have consented to the trial in his absence in the terms of Section 11(12) of the 1990 Constitution. He was also required to surrender his passport on the 13^th of August 1996. He failed to appear on that date and a Bench Warrant was issued for his arrest.

When the Applicant appeared before the Court on the Warrant on the 19^th of August 1996 he advised the Court that he had handed in his passport at the Court Registry. The Court ordered that he refrain from leaving the country until the end of the trial.

On the 25^th of November 1996 neither the Applicant nor his counsel attended the continuation of his trial which then continued in the absence of the Applicant pursuant to the provisions of Section 11(12) of the 1990 Constitution.

This section appears under the heading "Provisions to secure protection of law".

Sub-section (2) sets out the rights of any person charged with a criminal offence including the presumption of innocence; the right to be informed as soon as reasonably practicable in a language that he understands and in detail of the nature of the offence; the right to be given adequate time and facilities for the preparation of his defence; the right to defend himself or through a legal representative of his own choice; the provision of facilities to examine witnesses called by the prosecution and to call witnesses on his own behalf and finally the right to have without payment the assistance of an interpreter if necessary.

Sub-section (2) concludes with these words which I find important in the resolution of this application:

"and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence."

Sub-section (12) reads as follows:

"For the purposes of subsection (2) of this section a person who has been served with a summons or other process requiring him to appear at the time and place appointed for his trial and who does not so appear shall be deemed to have consented to the trial taking place in his absence."

It is not disputed that the Applicant was served with a summons or other process requiring him to appear at the time and place appointed for his trial. He in fact did appear.

On the 30^th of April 1997 the court delivered its judgment. It found the Applicant guilty on all counts.

The form in which the trial Magistrate sentenced the Applicant in his absence is curious and I have to say wrong. After finding that the prosecution had proved beyond reasonable doubt all the ingredients of the three charges the Court found the Applicant guilty as charged but did not set out the sentences which the Court imposed in its Judgment. These are to be found on the Warrant of Commitment which the trial Magistrate signed on the 30^th of April 1997. Although I know of no form prescribed by the Criminal Procedure Code as to the place in which the sentence of a Court must appear, in my judgment the common law and the practice of the Courts has always been that sentences must appear at the end of the judgment of the Court. This is to inform the public and the parties of the sentence of the Court. It is incorrect in my view to omit the sentence from the judgment but to include it instead on a Warrant of Commitment as was done here. In the end however I consider no injustice was done to the Applicant but Magistrates' Courts should note that the procedure I have mentioned must be followed in all cases.

Also during the course of his judgment the trial Magistrate held that Section 203(1) of the Criminal Procedure Code was void in view of the effect of Section 11(12) of the 1990 Constitution which the Magistrate described correctly as "the supreme law of the land".

In saying this the trial Magistrate was in error. Section 203(1) of the Criminal Procedure Code reads thus:

"If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit."

In my judgment Section 203 is not void or unconstitutional because it simply complements Section 11(12) of the Constitution.

To put it another way Section 11(12) reaffirms Section 203(1) of the Criminal Procedure Code.

In my judgment the learned Magistrate was correct in his interpretation and application of Section 11(12) of the Constitution but not in the view he formed of Section 203 of the Criminal Procedure Code in relation to Section 11(12).

It is common ground that the Applicant did not appear for the resumption of his trial; instead he went to New Zealand and remained there until the 22^nd of February 2001 when he was extradited from New Zealand to this country.

The application for leave to appeal out of time is made under Section 310 of the Criminal Procedure Code Cap. 21 which is in the following terms:

"(1) Every appeal shall be in the form of a petition in writing signed by the appellant or his barrister and solicitor and shall be presented to the magistrates' court from the decision of which the appeal is lodged within twenty-eight days of the date of the decision appealed against:

Provided that the magistrates' court or the Supreme Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

(2) For the purposes of this section and without prejudice to its generality "good cause" shall be deemed to include -

• (1) a case where the barrister and solicitor engaged by the appellant was not present at the hearing before the magistrates' court and for that reason requires further time for the preparation of the petition;
  
• (2) any case in which a question of law of unusual difficulty is involved;
  
• (3) a case in which the sanction of the Director of Public Prosecutions is required by virtue of section 308;
  
• (4) the inability of the appellant or his barrister and solicitor to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor."
  

In an affidavit which he has filed in support of his application for leave to appeal out of time the Applicant complains that the presiding Magistrate heard virtually all the nine witnesses called by the prosecution in his absence. The short answer to that complaint is that this was a matter entirely of the Applicant's own making. I am satisfied that he was warned adequately by the presiding Magistrate of the dangers of his not re-appearing for the continuation of his trial but he chose to ignore such warnings. He has not offered any good reason for his absence from Fiji for nearly four years but it is clear that he returned here only because he was extradited. In this respect his case is in many ways similar to that of John Yogendra Singh v. The State Criminal Appeal No. AAU0025/99S, a decision of the Court of Appeal on the 24^th of May 2001. At page 3 of its judgment the Court said this:

"We see the issue as really one of public policy. Should the Court entertain an appeal from a person who is deliberately evading its jurisdiction and thereby flouting its orders? The answer can be found in the following statement of the practice of the Court of Criminal Appeal in R. v. Flower [1966] 1 QB 146, 151:

".... The practice of this court where an appellant escapes, and for that reason is not present when an appeal is called on, is either to adjourn the appeal or dismiss it, according to the justice of the case."

In my judgment the Applicant chose deliberately to leave Fiji before his trial resumed. He has given no satisfactory explanation for this and consequently I consider his application is without merit and must be dismissed.

JOHN E. BYRNE
JUDGE