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Singh v The State [2004] FJHC 64; HAA0056J.2003S (23 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0056 OF 2003S

Between:

ABHAY SINGH
Appellant

And:

STATE
Respondent

Counsel: Mr. M. Raza for Appellant
Mr. P. Bulamainaivalu for State

Hearing: 13th February 2004
Judgment: 23rd February 2004

JUDGMENT

The Appellant is charged with the following offences:

FIRST COUNT

Statement of Offence

ATTEMPTING TO PERVERT THE COURSE OF JUSTICE: Contrary to Section 131 of the Penal Code Cap 17.

Particulars of Offence

ABHAY SINGH s/o Ranjeet Singh on or about the first week of June 2003 at Valelevu in the Southern Division attempted to pervert or defeat the course of justice by attempting to cause or induce a witness to give false testimony in a pending criminal cause.

SECOND COUNT

Statement of Offence

ATTEMPTING TO PERVERT THE COURSE OF JUSTICE: Contrary to Section 131 of the Penal Code Cap 17.

Particulars of Offence

ABHAY SINGH s/o Ranjeet Singh on or about the third week of July 2003 at Valelevu in the Southern Division attempted to pervert or defeat the course of justice by attempting to cause or induce a witness to give false testimony in a pending criminal cause.

THIRD COUNT

Statement of Offence

ATTEMPTING TO PERVERT THE COURSE OF JUSTICE: Contrary to Section 131 of the Penal Code Cap 17.

Particulars of Offence

ABHAY SINGH s/o Ranjeet Singh on 23rd of June 2003 at Valelevu in the Southern Division attempted to pervert or defeat the course of justice by attempting to cause or induce a witness to give false testimony in a pending criminal cause.

The charges were filed in the Suva Magistrates’ Court on 25th July 2003 and the case was called on the same day. Pleas were taken, and the Appellant pleaded not guilty on all counts. The case was then adjourned to the 1st of August 2003 for disclosure. On that day the case was adjourned further to 15th August and then to 18th August 2003. Another mention date was set as the prosecution wanted to take a further statement from a witness.

On the 29th of August there were some discussions about the release of the Appellant’s passport and the case was adjourned further to the 31st of October and then to the 31st of November 2003. On that day, the prosecution asked for the matter to be tried in the High Court under section 220 of the Criminal Procedure Code. Counsel for the defence asked for reasons for the prosecution’s application. The prosecutor said that he was not obliged to give reasons. Defence counsel then said – “We do not dispute the powers contained in section 220 of the Criminal Procedure Code.” The learned Magistrate then ordered a transfer to the High Court and adjourned the matter for mention in the High Court.

The Appellant now appeals against the order for transfer. The grounds of appeal are:

(a) That the learned trial Magistrate erred in law when he transferred the matter to the High Court as the present matter does not fall under the amended Criminal Procedure Code Cap 21.

(b) That the learned trial Magistrate should have used his discretion to continue hearing the matter as the matter had commenced on 25th July 2003 when the plea of the petitioner was taken.

(c) That the Appellant status quo should continue until the hearing and determination of this appeal by the Honourable Court.

The real ground of appeal is that the Magistrate erred in law in ordering the transfer, as the case did not fall under section 220 as amended by the Criminal Procedure Code (Amendment) Act No. 13/2003.

Counsel have both made written submissions in this case. The Appellant submits that the amendment to the CPC did not apply to cases where the charges were filed before the 13th of October 2003, that the original form of section 220 therefore applied which required the prosecutor to make the application before the commencement of the trial, that the trial commenced when the plea was taken and that therefore the learned Magistrate erred in ordering the transfer.

Counsel for the State submitted that the Criminal Procedure Code (Amendment) Act applied to all cases after the 13th of October except for those electable offences in respect of which charges were filed before the 13th of October, that the new Amendment Act specifically allowed the application to be made before the calling of evidence, that even if this were not so, it had already been decided by this Court that the trial commenced when the prosecution opened its case and not on plea, and that therefore the learned Magistrate did not err.

I must make an initial observation, that my decision in this case will have an impact only on this Appellant and on the small numbers of accused persons whose charges were laid before the 16th of October 2003 and whose charges were for non-electable offences. As more time passes, this decision will obviously become even more academic. However I accept that the result of this appeal has some significance for this Appellant.

The Criminal Procedure (Amendment) Act No. 13/2003 abolished committal proceedings in the Magistrates’ Court. The date that the Act came into effect was the 13th of October 2003. After that date, when a new charge was laid, an accused person who elected High Court trial, was (and is) simply subjected to a transfer order and told to appear on a particular day in the High Court. However, Parliament had of course to make arrangements for those accused persons whose charges had been laid before the 13th of October and who had requested High Court trial. For those accused persons section 15 provides:

“This Act does not apply to charges for electable offences pending in the magistrates’ courts before the commencement of this Act except where the accused person consented to his or her case being transferred to the High Court under the new section 226.”

Section 226 of the Code, provides:

“If an accused person has pleaded guilty and been convicted or pleaded not guilty an electable offence in respect of which the accused has elected trial in the High Court or with an offence triable only in the High Court the magistrate, shall, forthwith, order the transfer of the charges or proceedings to the High court for sentencing or for trial.”

Section 220 of the Criminal Procedure Code read, prior to the Amendment Act:

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions hereinafter contained, and in such case the provisions of section 235 shall not apply.”

Section 220 is now amended by section 7 of the Amendment act No. 13 of 2003. It now reads:

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the calling of evidence at the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII.”

The question for determination in this appeal is – does section 220 as amended, apply to the Appellant?

There are three categories of cases which may be transferred to the High Court, and each category is separately provided for under the amended Code. The first is those cases where the accused has a right to choose which court should try him. Those cases are those where the offences are specified in the Electable Offences Decree. The second category is of those cases where the offences are triable only in the High Court (for instance murder and manslaughter). The third category of cases are those where the State has elected High Court trial under section 220.

In respect of the first category, the accused person is entitled to committal proceedings, if he wishes, if his charges were laid before the 13th of October. In respect of the 2nd category, irrespective of when the charges were laid, the accused has no right to committal proceedings and the magistrate must simply make a transfer order after the 13th of October 2003. In respect of the 3rd category, the prosecutor may make the application at any time before the calling of evidence but after the 13th of October and irrespective of when the charges were laid.

Section 15 of the Amendment Act provides in very clear terms and without any ambiguity that the option to request the old procedures applies only to accused persons charged with electable offences before the 13th of October 2003. There is no dispute at all that the Appellant is not charged with electable offences. The section does not apply to non-electable offences such as murder, or to cases subject to a section 220 application. Thus, even where a charge is laid before the 13th of October, 2003, a Magistrate who considers that the case is more suited for High Court trial, may order transfer under the new section 226 as long as the offence was non-electable. It follows that in this case, the prosecutor could make the application for the new-style transfer because he made it after the 13th of October 2003, and the offences are non-electable.

Defence counsel submitted that the Chief Justice’s Practice Direction No. 1 of 2003 suggests otherwise. That Practice Direction sets down administrative guidelines for magistrates in the transfer of cases under the (Amendment) Act. It provides for new disclosure deadlines, and for transfer for dates within a 14 day period (it appears in order to comply with the provisions of the Bail Act 2003). Paragraph 6 states:

“The Amendment Act applies only to criminal charges filed after the 13th of October 2003. Those accused persons whose charges were filed prior to that date are still entitled to the old Preliminary Inquiry procedures.”

Counsel for the Appellant suggests that this means that section 15 of the Amendment Act applies to all accused persons, whether charged with electable offences or not. With respect, I cannot agree. A Practice Direction cannot amend legislation. Section 15 clearly applies only to accused persons charged with electable offences. Paragraph 6 of the Practice Direction must therefore be assumed to apply to those accused persons specified in section 15 of the Amendment Act. It does not apply to the Appellant.

Having determined this point of law, the question of when a trial commences is of academic interest only. The evidence had not been led, and under the new section 220 the prosecutor was entitled to request transfer.

Suffice it to say that the submissions of counsel would not have persuaded me to depart from the decision I made in respect of the old section 220 in Rajnesh Rajeshwar Prasad –v- State Cr. App. HAA0031 of 2003S, based as it was on Ex Parte Guardian Newspapers (1999) 1 Cr. App. 284, Vickers (1975) Cr. App. R. 48, and Tonner and Others (1985) 1 WLR 344.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd February 2004