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Voivoi v State [2008] FJHC 73; HAA019J.2008 (25 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 019 of 2008

BETWEEN:

FILIPE VOIVOI
Appellant

AND:

THE STATE
Respondent

Hearing: 18th April 2008
Judgment: 25th April 2008

Counsel: Appellant in person
Mr. A. Ravindra-Singh for State

JUDGMENT

The Appellant was charged with robbery with violence on one count, and unlawful use of motor vehicle on another count. The charge on Count 1, was that on the 13th of April 2004, at Suva, he and three others robbed Mahendra Singh of $50.00 cash and immediately before the robbery used personal violence on him. On Count 2, it was alleged that he with three others on the 13th of April 2004 at Suva unlawfully used a taxi LT1160 the property of Mahendra Singh.

The case was initially called on the 26th of April 2004 and the Appellant pleaded guilty on Count 1, and not guilty on Count 2. The facts were read and admitted, and the matter adjourned for trial on Count 2.

On the 10th of May 2004, the Appellant changed his plea. He gave no reason for the change. He was still unrepresented by counsel. The guilty plea was vacated and the case adjourned for trial on both counts. The Appellant was granted bail. There were several adjournments, and from the 31st of March 2005, the Appellant made no appearance in court, other than an appearance on 19th July 2005 when he was advised to engage counsel.

On the 14th of February 2007, the witnesses were present but the Appellant was not. The learned Magistrate recorded the following:

"He has been evading police and court. He knows hearing date – not present. Deliberately not present. The hearing can proceed in absence."

The evidence was then led from the complainant, one other lay witness and three police witnesses. The prosecution then closed its case. The learned Magistrate adjourned for judgment. The prosecution told him that the Appellant was a serving prisoner and asked for a production order. The Appellant finally appeared in court on the 24th of September 2007. He told the learned Magistrate that he had been a serving prisoner and the police had never effected the production order. Judgment was then delivered, convicting him. The Appellant mitigated and was sentenced to 3 years imprisonment for the robbery and 4 months imprisonment for the unlawful use conviction.

The Appellant now appeals against conviction and sentence. His grounds relate mainly to the reasons given by the presiding magistrate for his conviction. However his appeal succeeds on one ground alone, and that is that the learned magistrate erred in law in trying the Appellant in his absence.

I have recently considered the right to be present during one’s trial in Pita Costa v. State HAA 034 of 2008.

Section 28(2) of the Constitution provides that a court may proceed to trial in the absence of the accused where the accused has been summoned to attend or advised of the trial date, and absents himself and the offence with which he or she is charged is not punishable by a term of imprisonment. In this case, both counts on the charge sheet are punishable with terms of imprisonment. The learned Magistrate therefore could not have proceeded without the Appellant. The conviction and sentence are quashed.

I would have ordered a retrial in this case, except for two factors. One is that according to the Appellant’s warrant of commitment he was a serving prisoner from 12th December 2006 and could not have attended his trial on 14th February 2007 without a production order. No production order was issued for him. His non-attendance at his trial was not his fault. The second factor is that although the robbery of a taxi driver is a most serious matter the offence was allegedly committed in 2004, four years ago. The value of the money stolen was $50. The Appellant is currently serving a 4 year term for robbery with violence.

In all these circumstances I do not consider it just to order a retrial.

Result

Conviction and sentence are quashed. No retrial is ordered.

Nazhat Shameem
JUDGE

At Suva
25th April 2008