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Veiqaravi v Prices & Incomes Board [2003] FJHC 116; HAA0017J.2003S (26 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0017 OF 2003S

Between:

CECELIA VEIQARAVI
Appellant

And:

PRICES & INCOMES BOARD
Respondent

Counsel: Mr S. Valenitabua for Appellant
Mr S. Banuve for Respondent

JUDGMENT

On the 4th of February 2003 the Appellant was convicted in the Suva Magistrate’s Court of the following offence after a “formal proof” procedure:

Statement of Offence

FAIL TO GIVE 12 WEEKS WRITTEN NOTICE TO THE PRICES AND INCOMES BOARD OF THE PROPOSED INCREASE IN RENT: Contrary to paragraph 2 of the Counter-Inflation (Notification of Proposed Increase in Rent) Order 1996 (Legal Notice 63/96) and Sections 30(1) and 32 of the Counter-Inflation Act, Cap. 73.

Particulars of Offence

Cecelia Veiqaravi, did on the 1st day of March 2000, at Nasinu in the Central Division, increase the monthly rent of residential premises from $150.00 to $200.00, fail to give 12 weeks written notice to the Prices and Incomes Board of the said proposed increase in rent in respect of the letting of the said premises under a tenancy to which the Act applies.

She was ordered to refund $1,300.00 to the tenant, pay a fine of $200 within 3 months and pay costs to the Prices and Income Board of $33.00. The Appellant appeals against conviction and sentence upon the following grounds:

(a) That the learned Magistrate was wrong in fact and in law in proceeding with the Formal Proof of this case when the Tenant William Ting was deceased at the date of the Formal Proof.

(b) That the learned Magistrate was wrong in fact and in law in proceeding with the Formal Proof when the Court could and should have brought the Defendant to Court by bench warrant to facilitate the Defendant’s attendance in Court and the proper hearing of the complaint.

(c) That the learned Magistrate was wrong in fact and in law when she convicted the Defendant on the basis of evidence, if any, other then the Tenant’s, William Ting’s evidence.

(d) That the prosecutor misled, misinformed, misdirected and was dishonest to the Court in not disclosing that the Tenant William Ting was deceased on the date of the Formal Proof.

The history of the case

The charge was laid on the 24th of September 2002. The Appellant did not appear but was represented by counsel on the date of first call. He entered a plea of not guilty on her behalf. The case was adjourned to the 28th of November 2002 for disclosure. The Appellant did not appear but she was represented by counsel. The court recorded “Hearing/formal proof 16/01/03.”

On the 16th of January 2003 counsel appeared for the Appellant and said that disclosure had not been complied with. The case was further adjourned to later in the day before another Magistrate. The Appellant did not appear. Nor was she represented by counsel. The prosecution asked for an adjournment saying that his witness was not present. The case was then adjourned to the 4th of February 2003 for “formal proof.”

On the 4th of February the Appellant was not present and she was not represented by counsel. The prosecution called Polly Ting. She gave evidence that on the 10th of July 1996 she had lived in a house she rented from the Appellant. She paid a rent of $150 until March 1st 2000. On that day the Appellant increased the rent to $200 per month. The witness had seen the receipts before her husband gave them to the Prices and Incomes Board. She tendered the receipts for 10th July 1996, 6th January 2000, 8th February 2000, 6th March 2000, 7th April 2000, 9th May 2000, 7th June 2000, 8th September 2000 and 7th July 2000. The receipts after 7th April 2000 were for $200. She also tendered other receipts for the sum of $200 up to 8th March 2002. She vacated the premises in April 2002.

The learned Magistrate convicted the Appellant as charged and proceeded to record the following:

“Summarily rule that on the evidence of the prosecution witness heard in court the charge is proved on the balance of probability that there was failure on the part of the landlord to give notice to the relevant authority to increase the rent for the complainant who was the tenant of the landlord.”

At the hearing date allocated for the hearing of this appeal, counsel for the Appellant made an application to adduce further evidence. I asked him to file a motion to that effect and an affidavit containing the evidence sought to be adduced. He filed a motion seeking to adduce the evidence of Cecelia Veiqaravi sworn on the 9th of June 2003. Annexed to it is a tenancy agreement between the Appellant and William Ting agreeing to rent the premises concerned at $150 per month, and a letter written by a former tenant of the same premises, one Levi Time stating that he had paid the owners a rental of $300.

Counsel for the Prices and Incomes Board did not object initially to the tendering of this evidence, saying that it was irrelevant to the appeal in any event. However in his written submissions, he did object saying that the evidence was inadmissible and did not satisfy the criteria for the admission of further evidence on appeal.

Additional evidence at the hearing of an appeal should be allowed in exceptional circumstances. Section 320 of the Criminal Procedure Code provides:

“(1) In dealing with an appeal from a magistrates’ court the Supreme Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a magistrates’ court.

(2) When the additional evidence is taken by a magistrates’ court, such court shall certify such evidence to the Supreme Court, which shall thereupon proceed to dispose of the appeal.

(3) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a magistrates’ court.”

The Code is silent on the matters relevant to a consideration of an application under section 320. However as a statement of general principle Section 23(2) of the Criminal Appeal Act 1968 (England), is helpful. That provision reads:

“The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceeding.”

In this case, I have no doubt that the evidence is capable of belief. However I do not consider that the affidavit lays any basis for the allowing of this appeal. The evidence of Polly Ting was that the rent had been increased from $150 to $200. Whether or not she was the tenant was of limited importance. What was relevant was that she was making the payments and had direct personal knowledge about the increase in the rent.

As for the excuse given for failing to give this evidence in the court below, I find it less than compelling. The Appellant does not say that she did not know of the hearing date. She says that she should have been compelled to attend court under section 88(2) of the Criminal Procedure Code. To now say that she ought to have been compelled to attend, when (it is submitted) her personal attendance was dispensed with is unacceptable. I do not consider that any good reason is given for the failure to tender the tenancy agreement in the lower court.

For these reasons, leave to adduce further evidence is refused.

The appeal

The crux of the appeal is that the learned Magistrate should not have proceeded in the absence of the Appellant and should not have convicted in her absence.

Section 88(1) of the Criminal Procedure Code provides:

“Whenever a magistrate issues a summons in respect of any offence other than a felony, he may if he sees reason to do so, and shall when the offence with which the accused is charged is punishable only by fine or only by fine and/or imprisonment not exceeding three months or by disqualification from holding or obtaining a driving licence, dispense with the personal attendance of the accused, provided that he pleads guilty in writing or appears by a barrister and solicitor.”

Section 88(2) of the Code provides:

“But the magistrate inquiring into or trying any case may in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinafter provided. But no such warrant shall be issued unless a complaint or charge has been made upon oath.”

Although there was no application made to dispense with the personal attendance of the Appellant, the Magistrate appears to have so dispensed because there were several appearances of counsel on her behalf and her absence was never queried. However, the absence of counsel on the 16th of January when the case was called for the second time is troubling because no attempts appear to have been made to advise counsel of the hearing date. Further, when the first Magistrate heard the matter on the 16th of January and adjourned it to later in the day, how could counsel have known that the case would be called before another magistrate? The hearing date was therefore set in the absence of counsel by a Magistrate who had (thus far) not been the Magistrate handling the case. In the absence of either the accused or counsel, a notice of adjourned hearing should have been served on the accused to tell her that the trial would proceed on the 4th of February.

Section 28(1)(h) of the Constitution provides:

“Every person charged with an offence has the right:

(h) not to have the trial take place in his or her absence unless:

(i) the court is satisfied that the person has been served with a summons or other process requiring his or her attendance and has chosen not to attend;”

Counsel in his submissions, argued that the learned Magistrate ought to have ordered the Appellant to attend, referring to section 88(2) of the Code, and section 199 of the Code. Section 199 provides:

“Notwithstanding the provisions of section 189, if an accused person charged with any offence punishable with imprisonment for a term not exceeding six months and/or a fine not exceeding one hundred dollars does not appear at the time and place appointed in and by the summons, or by any bond for his appearance that he may have entered into, and his personal attendance has not been dispensed with under section 88, the court may, on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 90.”

Reading these sections together, it appears that when the accused person fails to appear in court in answer to a summons, a Magistrate may either proceed in his absence (section 199 CPC and section 28 of the Constitution) or order the accused to attend. In this case, the Appellant was represented by counsel and I do not think that the learned Magistrate, erred in failing to order the Appellant’s attendance.

The record shows that although the Appellant herself had chosen to absent herself, she had instructed counsel who had appeared on her behalf. However the hearing date was set in his absence and he could not have known firstly that the case was transferred to another magistrate, and secondly that she had listed the case for the 4th of February for hearing. In all the circumstances, the Appellant cannot be deemed to consent to the trial taking place in her absence and I consider that there was a breach of section 28 of the Constitution. The power to proceed in the absence of the accused is a discretionary one. It must be exercised judicially. The questions a Magistrate or Judge might ask before proceeding, are: Is the offence serious? Is the accused in jeopardy of a prison sentence? How much notice did the accused have of the hearing date? Finally, the power cannot be exercised at all without proof that the accused knew of the hearing date by proper service of summons or a notice of hearing or by other order of the court. Where a magistrate sets a hearing date in the absence of the accused or his/her legal representative, a notice of adjourned hearing must be served on the accused before the power to proceed in his/her absence can come into play. In this case, the Appellant could not have known of the hearing date. There is nothing on the record to show that a notice of hearing was served on her or on counsel for the 4th of February. The result must be to quash the conviction and order a re-hearing. I so order accordingly.

The other grounds

The appeal is allowed on the ground that the learned magistrate should not have proceeded in the absence of counsel. However I deal with the other grounds of appeal briefly.

The submission that Polly Ting could not have given evidence of the rental increase is misconceived. She made the payments for rent. She knew that they had increased from $150 to $200. She saw the receipts and she knew that her husband had made a complaint to the Prices and Incomes Board. There was no reason why her evidence should not have been received on the question of the rental increase. Further, the death of her husband, for the same reason was of limited relevance because Polly Ting was aware of the rental increase and said that she had made the payments herself.

Finally, I asked counsel to address me on the standard of proof applied by the learned Magistrate in this case. She directed herself that she was satisfied that the offence was proved on a balance of probabilities. Counsel for the Board states in relation to this issue:

“...... with respect, even if this direction is wrong and may be decided in favour of the appellant, no substantial miscarriage of justice has actually occurred and this issue ought not to be held against the Respondent ...... It is submitted that in fact there is no dispute that no notice was ever given to the Respondent in relation to the increase in rental in December 2000. Whatever the standard of proof this was sufficient evidence to justify the conviction in the Court below.”

Did the learned Magistrate apply the correct standard of proof? Paragraph 2 of the Counter Inflation (Notification of Proposed Increase in Rent) Order 1996 (Legal Notice 63/96) provides as follows:

“At least twelve weeks’ written notice shall be given to the Prices and Incomes Board of any proposed increase in any rent including ground rental in respect of the letting or continued letting by any person or class of persons (including the State) of any premises under any tenancy to which the Act applies.”

The section appears to create a negative averment, proof of which is usually the accused’s to rebut on a balance of probabilities. This is because a negative averment usually raises issues which are within the particular knowledge of the accused.

Section 144 of the Criminal Procedure Code provides:

“Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the Act creating such offence, and whether or not specified or negatived in the charge or complaint, may be proved by the defendant or accused, but no proof in relation thereto shall be required on the part of the complainant or prosecution.”

As Gates J said in State –v- Viliame Savu Cr. Action HAC0010.2002S (Ruling on motion to quash Information):

“Whether it is to be founded on the information for the excuse being peculiarly within the knowledge of the Accused R –v- Turner [1816] EngR 587; (1816) 5 M&S 206, or whether as a matter of pleading and ease of proof of an issue in a trial, it seems that it is more appropriate and practical that the burden of proof for the excuse be placed (as an exception) to the normal burden upon the Accused. Woolmington –v- DPP (1935) AC 462; R –v- Hunt (1987) AC 352; Rohit Ram Latchan –v- State Fiji Cr. App. No. AAU0015 of 1996S;”

Phrases which create negative averments include “without lawful excuse”, or “without a licence.” In such cases the standard of proof, which is on the accused, is on a balance of probabilities (R –v- Brown 55 Cr. App. R. 478; Rohit Ram Latchan –v- State (supra); Philcox –v- Carberry (1960) Crim. L.R. 563.)

In all the circumstances I consider that the learned Magistrate did not err when she found the offence proved on a balance of probabilities. It was for the Appellant to prove that she had notified the Board, on a balance of probabilities. It was for the prosecution to prove that she had increased the rent, beyond reasonable doubt.

Result: This appeal is allowed. The conviction and sentence are quashed and a re-trial ordered.

Nazhat Shameem
JUDGE

At Suva
26th June 2003