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Dass v State [2008] FJHC 89; HAA003.2008 (7 May 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No.: HAA003 of 2008

BETWEEN:

KALI DASS
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. S. Sharma for the Appellant
Mr. L. Savou for the State

Date of Hearing: Thursday 1st May, 2008
Date of Judgment Wednesday 7th May, 2008

JUDGMENT

[1] Following a trial in the Sigatoka Magistrates’ Court the appellant was convicted of forgery, uttering and obtaining money on forged document. He was sentenced to 18 months imprisonment for forgery, 12 months imprisonment for uttering and 12 months imprisonment for obtaining. The sentences were made concurrent.

[2] The record shows that on three court appearances before the trial, the appellant was represented by a private counsel. On 27 November 2007, counsel for the appellant informed the Magistrate his objection to the admissibility of the appellant’s caution statements. The counsel requested for certain disclosures regarding the circumstances in which the caution statements were obtained by the police and the court ordered the prosecution to supply the requested disclosures to the defence before the trial. A hearing date of 15 January 2008 was set. On 15 January 2008, the appellant appeared in person and the Magistrate without making any enquiries about the whereabouts of the counsel, proceeded with the hearing of trial. The court did not enquire from the appellant whether the prosecution had supplied him with the requested disclosures.

[3] At the trial, the prosecution called evidence from two civilian witnesses and five police officers. The appellant gave sworn evidence.

[4] Mohammed Rasik whose signature the appellant allegedly forged on a withdrawal slip and withdrew money said he was the treasurer of a sugar cane harvest gang called the National TT gang. The gang had a cheque account with the ANZ Bank Tavua branch. Rasik and either the President or the Secretary of the gang could sign the cheques. The appellant was a member of the gang. Rasik said all the members knew his signature. On 6 March 2007, Rasik tried to withdrew funds from the gang account when he learnt the account had insufficient funds. A bank staff informed Rasik that on 1 March 2007, $1500.00 was withdrawn from the account. On 15 March 2007, in Rasik’s presence the appellant was confronted by police officers at the Lautoka Police Station. Rasik said the appellant admitted making the withdrawal from the gang account. The appellant did not cross examine Rasik.

[5] The next witness was Monita Devi, a teller with the ANZ Bank Sigatoka where the alleged withdrawal was made. Monita said she was the teller who attended the appellant when he came with the withdrawal slip on 1 March 2007. She said the appellant signed the slip in her presence and she gave $1500.00 to him. In cross examination the appellant asked Monita whether she had any proof that he had signed the slip in her presence to which she replied that his presence was recorded by a video camera at the bank. However, the prosecution did not adduce any video evidence of identification.

[6] The police officers gave evidence surrounding the circumstances of the appellant’s caution interview and the charge statement. The caution interview contained incriminating evidence against the appellant. In cross examination the appellant suggested to one police officer that he was assaulted which the police officer denied.

[7] In his sworn evidence the appellant denied withdrawing the money as alleged. He maintained that he was assaulted during his caution interview.

[8] After listening to all the evidence, the Magistrate gave a three line judgment convicting the appellant on all three counts. The judgment reads:

Having considered all the evidence in its totality and assessing the demeanors of all witnesses including the Accused, I am persuaded to believe the prosecution witness. I am satisfied beyond reasonable doubt i.e. I am sure that you Kali Dass committed the offences charged.

I find you guilty as charged and convict you accordingly.

[9] The appellant’s principal ground of appeal against conviction is that he was prejudiced by lack of legal representation and that his sentence is harsh and excessive.

[10] The right to legal representation is not an absolute right. The appellant was represented by counsel of choice and on the day of the trial the counsel failed to appear. The record shows the Magistrate proceeded with the trial without making any enquiries from the appellant about the whereabouts of his counsel. There is nothing in the record to suggest that the appellant had waived his right to legal representation. The question now is whether he was prejudiced by lack of legal representation.

[11] The principles to apply to cases which proceed with the accused unrepresented are settled. The test is whether there is a possibility of that the accused was adversely prejudiced by the lack of representation (Asesela Drotini v State [2206] Cr App AAU 1/05, 24 March 2006). The court must consider whether the prejudice was such that there has been a risk of injustice (Semisi Wainiqolo v the State Cr App AAU0027/06, 24 November 2006). The prejudice is assessed by considering the nature and strength of the prosecution case and the defence that is made to it (Rusiate Tuidravu v State [2006] Cr App AAU 35/05, 10 November 2006.

[12] The prosecution case depended on the identification evidence of the bank teller Monita and the appellant’s caution interview by the police. In his judgment the learned Magistrate made no assessment of the circumstances under which Monita identified the appellant to be the person who presented the withdrawal slip and took the cash. Bank tellers come across so many customers in a day. What was so peculiar about this appellant that she remembered him? A counsel would have surely cross examined this witness on these matters. The learned Magistrate assessed all the evidence solely on the basis of credibility. The approach was clearly wrong. Monita might have been a credible witness. That does not mean her evidence of identification was reliable. A witness could be credible yet mistaken about identification.

[13] Furthermore, when the appellant was represented by counsel, the counsel informed the learned Magistrate his objections to the admissibility of the appellant’s caution statements. Before commencing the trial when the appellant appeared in person, the learned Magistrate did not ascertain from the appellant whether he maintained his objection to the admission in evidence of his caution statements.

[14] If the admissibility of caution statements is in dispute in a trial before the Magistrates’ Court, then the Magistrate is obliged in law to direct a trial within trial hearing and determine the issue prior to the commencement of the defence case (Rokonabete v The State, Criminal Appeal No. AAU 0048/05). When an accused is unrepresented, it is a duty of the trial Magistrate to explain to the accused the law and procedure about the admissibility of caution statement (John Levu v State [1971] 17 FLR 224)

[15] In Rokonabete’s case the Court of Appeal held that any error in the manner in which the admissibility of the caution statements was considered by the trial court must give rise to a possibility of substantial injustice particularly if the court relied on the caution statements to convict the accused.

[16] The learned Magistrate based the conviction of the appellant on all the evidence in its totality. It is therefore safe to conclude that the learned Magistrate relied on the disputed caution statements of the appellant to convict him. A counsel would have ensured that the learned Magistrate held a trial within trial to determine the admissibility of the appellant’s caution statements to the police before admitting it into evidence. The failure to hold a trial within trial was a material procedural defect in the proceedings which prejudiced the appellant.

[17] For these reasons, I hold the appellant was prejudiced by lack of legal representation and therefore was denied the substance of a fair trial.

[18] I make a further observation about the brevity of the learned Magistrate’s judgment. The judgment clearly failed to comply with section 155(1) of the Criminal Procedure Code that imposes an obligation on the courts to give reasoned judgments. All magistrates when writing judgments are expected to follow the recommended guidelines provided in Chandar Pal v R [1974] 20 FLR 1. In Pal’s case Grant Ag. C.J. said:

As a general rule, the judgment should commence with a description of the charge, followed by the relevant events and the material evidence set out in correct sequence in narrative form, the identifying number of each pertinent witness being incorporated at the appropriate places, after which the Magistrate should state what witnesses he believes and whose evidence he accepts or rejects, and should proceed to make his findings of fact, apply the appropriate law to those facts, and give his reasoned decision; bearing in mind throughout the provisions of Section 154(1) of the Criminal Procedure Code.

If these considerations are kept in view, not only will it make the task of an appellate court easier, it might well lead to fewer decisions being upset.

[19] I would reinforce the view of Grant Ag C.J. in Pal’s case that a compliance with the guidelines might lead to fewer decisions being upset on appeal.

Result

[20] Appeal allowed. Conviction set aside and the case is remitted to the Magistrates’ Court for trial de novo before another Magistrate.

Daniel Goundar
JUDGE

At Lautoka
Wednesday, 7th May 2008

Solicitors
Office of the Director of Public Prosecutions, Lautoka for the State
Legal Aid Commission, Lautoka for the Appellant