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State v Rama [2010] FJHC 76; HAC026.2010; HAC027.2010; HAC028.2010 (5 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case Nos: HAC 026, 027, 028 of 2010

STATE

V

KAMAL LATA RAMA

Hearing: 26th February 2010
Ruling: 5th March 2010

Counsel: Mr. J. Singh for State
Accused in person

RULING

[1] The accused is charged in three separate cases with the offence of obtaining money by false pretence. She was granted bail when she appeared for arraignment in the Magistrates’ Court. On 24 July 2009, she failed to appear in court and a bench warrant was issued against her.

[2] On 21 September 2009, she was arrested and was remanded in custody by the Magistrates’ Court. Her subsequent applications for bail were refused by the Magistrates’ Court.

[3] On 26 November 2009, the accused renewed her application for bail, which was refused by the learned Magistrate.

[4] The accused then asked the learned Magistrate to transfer the cases to the High Court for a review of bail.

[5] The learned Magistrate acceded to her request and transferred the cases to the High Court under section 220 of the Criminal Procedure Code for a review of bail.

[6] When the matter came before the High Court, I invited the State to make submissions on the validity of the transfer orders.

[7] Mr. Singh filed helpful submissions, which I have taken into account. The State submits that the transfer orders were made in error and therefore are invalid. I agree with this submission.

[8] The offence of obtaining money by false pretence is a misdemeanour and is non electable. When a non electable offence is before the Magistrates’ Court for trial, section 220 of the Criminal Procedure Code provides:

"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 High Court or if before the calling of evidence at 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."

[9] The terms of section 220 are clear. Section 220 provides for two modes of transfer to the High Court. One is when a prosecutor makes an application before any evidence is called. The second is when it appears to the magistrate that the case is one which ought to be tried by the High Court.

[10] The reason for transfer in this case is not to have the cases tried in the High Court, but for a bail review. Section 220 does not permit a transfer to the High Court for a bail review. I find the reason for the transfer orders is misconceived.

[11] The proper course for the learned Magistrate was to advise the accused of her right of appeal or review of the bail decisions to the High Court under the Bail Act, while retaining the cases in the Magistrates’ Court for trial.

[12] The transfer orders are quashed under the revisionary jurisdiction of this Court and the cases are transferred to the Magistrate’s Court for trial. The accused may renew her application for bail in the Magistrates’ Court. A production order is issued for the accused to appear in the Magistrates’ Court on 9 March 2010 at 9.30am for mention.

Daniel Goundar
JUDGE

At Suva
5th March 2010

Solicitors:
Office of the DPP for State
Accused in person