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Sami Naidu Holdings Ltd v Suva City Council [2010] FJHC 505; HAA038.2010 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA038 of 2010

BETWEEN:

SAMI NAIDU HOLDINGS LIMITED
Appellant

AND:

SUVA CITY COUNCIL
Respondent

Hearing: 25 October 2010
Judgment: 16 November 2010

Counsel: Mr. D. Prasad for Appellant
Mr. N. Lajendra for Respondent

JUDGMENT

[1] Following a trial in the Magistrate's Court at Suva the appellant was convicted of breaching Regulations 17(5) and 137(1) of the Town (Building) Regulations made pursuant to Public Health Act, Cap 111.

[2] The breach was that the appellant failed to comply with a notice by a building surveyor to stop construction work at a property located within the jurisdiction of the Suva City Council. The learned Magistrate found the breach to be continuing. The appellant was ordered to pay a total fine of $18,500, which was calculated at a rate of $50.00 per day for 371 days.

[3] The appellant relies on two grounds of appeal which can be conveniently dealt together. He contends that he was denied an opportunity to be heard before the finding of breach was made against him and that the punishment was imposed on him in his absence.

[4] Due process requires that before an adverse decision is made against a person, that person should be afforded an opportunity to be heard. Due process is same as natural justice and is a vital component of judicial proceedings. This court said in Foods Pacific Limited v. Lami Town Council HAR004 of 2009:

"The accused was entitled to natural justice or due process of law before any order that adversely affected his rights was made. It is a fundamental principle that our justice system has been founded on."

[5] Lord Bridge in Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at page 702 said:

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

[6] In R v Commission of Racial Equality ex parte Cottrell and Rothon (1980) 3 AER 265, Lord Lane at page 271 said:

"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly. Accordingly, before assessing the fairness of the manner in which the decision complained of was taken ..., it is necessary to analyse the context in which it was made and the nature of the decision."

[7] A trial in the absence of the accused will not necessarily constitute a denial of due process.

[8] In R v. Jones [2002] UKHL5 2 All ER 113, the defendant had notice of his trial date but he failed to appear. He was convicted and sentenced in his absence. On appeal to the House of Lords, the court agreed with the Court of Appeal, saying that where a defendant of full age and sound mind with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason why his absence should automatically suspend criminal proceedings against him. A trial held in the absence of the defendant did not offend the European Convention for the Protection of Human Rights and Fundamental Freedoms or the U.K. Human Rights Act 1998. The Court could proceed in the absence of the defendant but should conduct the proceedings with fairness. Relevant considerations in deciding to proceed in the absence of the defendant are the reasons for the absence, legal representation and length of absence. The seriousness of the charge was not relevant (per Lord Bingham).

[9] The appellant was charged by way of Summons under sections 82 and 89 of the Criminal Procedure Code. The Summons was served on the appellant on 26 August 2009. The Summons required the appellant to attend the Magistrate's Court if the charge was going to be contested.

[10] On 2 October 2009, no appearance was made on behalf of the appellant. On the next adjourned date, the appellant was represented by counsel.

[11] The trial commenced on 7 May 2010. The appellant was represented by counsel. The prosecution closed its case after calling one witness. Counsel for the appellant then stated:

"I will also rest my case and await for your ruling. So far no plans were approved but amended plans sent for approval."

[12] The case was adjourned to 1 June 2010 for ruling. On 1 June 2010 the court record shows that counsel for the appellant did not appear in court to receive the ruling. The learned Magistrate noted that the appellant was aware of the ruling date but failed to show up. After delivering the ruling, the case was adjourned to 23 June 2010 for sentence. On 23 June 2010 the appellant was sentenced in absentia.

[13] It is clear that the appellant was afforded due process. The appellant was represented by an experienced counsel at trial. After close of the case for the prosecution, counsel for the appellant elected to rest the defence case without making any application. The appellant had every opportunity through counsel to be heard. He had notice of the ruling date but failed to appear for the ruling. The learned Magistrate was quite entitled to deliver the ruling and impose sentence in absentia. In my judgment, the learned Magistrate did not make any error in proceeding with the case in the appellant's absence. The trial was conducted fairly.

[14] The appeal is without merits and is therefore dismissed.

Daniel Goundar
JUDGE

At Suva
16 November 2010

Solicitors:
Office of D. Prasad Lawyers for Appellant
Office of Lajendra Law for Respondent