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Vakamudulau v State [2018] FJHC 271; HAA45.2017 (12 April 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 45 OF 2017

BETWEEN:
SOLOMONI VAKAMUDULAU

Appellant

A N D:
STATE

Respondent

Counsel: Appellant In Person
Ms. W. Elo for Respondent

Date of Hearing: 22^nd March 2018

Date of Judgment: 12^th April 2018

JUDGMENT

1. The Appellant was charged in the Magistrate’s Court in Suva for one count of Burglary, contrary to Section 312 (1) of the Crimes Act and one count of Theft, contrary to Section 291 (1) of the Crimes Act. He was first produced in the Magistrate’s Court on the 3rd of June 2013. On the 7th of June 2013, the accused had been granted bail pending the trial. According to the record of the proceedings in the Magistrate’s Court, I find an order had been given extending the bench warrant against the accused on the 8th of August 2014. The matter had been adjourned on many occasions since then, pending the execution of bench warrant. The Appellant had not appeared in court on any of those occasions. Eventually, the learned Magistrate had proceeded for hearing on the 22nd of December 2017, in the absence of the Appellant. The hearing has concluded on the 10th of February 2017. The learned Magistrate in his judgment dated 28th of February 2017, has found the Appellant not guilty for the two counts as charged, but found him guilty for the offence of Receiving of Stolen Property, contrary to Section 306 of the Crimes Act. On the 7th of April 2017, the learned Magistrate sentenced the Appellant in his absence for a period of 15 months imprisonment for the offence of Receiving of Stolen Property.
   
2. The Appellant filed a letter under the heading of “conviction appeal”, explaining his reasons to file this letter. In summary, the grounds that he wants to advance in the letter are, that:
   
   1. The Appellant was not properly summoned and informed by the prosecution about the hearing,
      2. He was in remand custody for a case that was pending in the Magistrate’s Court of Nasinu on the date of the trial.
         
3. Having taken into consideration the nature of this application, the court invited the parties to file written submissions whether this court has jurisdiction to hear this application pursuant to Section 172 of the Criminal Procedure Act.
   
4. The Appellant’s main contention is that, he had no control of his absence in the trial as he was not properly summoned or informed by the Police about the hearing date. He further contends that he was in remand custody on the date of the trial.
   
5. Section 246 (1) of the Criminal Procedure Act has given the High Court an appellate jurisdiction to hear the appeals against the orders, judgments and sentences imposed by the Magistrate’s Court, where it states that:
   

“Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgment and sentence.”

6. Section 246 (7) of the Criminal Procedure Act has stipulated that the right to appeal against an order, judgment or sentence of the Magistrates’ Court arises only after the Magistrates’ Court has finally determined the guilt of the accused person, where it states that:
   

“An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.”

7. In this case, the Appellant had failed to appear in court on the 8th of August 2014. The matter had been adjourned for many occasions since then, pending the execution of bench warrant. The Appellant had not appeared in court on any of those occasions. The learned Magistrate had then commenced the hearing on the 22nd of December 2016, in the absence of the Appellant.
   
8. According to Section 14 (2) (h) of the Constitution of the Republic of Fiji, every person charged with an offence has a right to be present when he is being tried in court. However, Section 14 (2) (h) has provided two instances, where the court is allowed to proceed the hearing in the absence of the accused. Section 14 (2) (h) of the Constitution states that:
   
   1. The court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend; or
      
   2. The conduct of the person is such that the continuation of the proceedings in his or her presence is impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence;
      
10. Section 171 of the Criminal Procedure Act has given the jurisdiction to the Magistrates’ Court to proceed the hearing in the absence of the accused. It states that:
    

If at the time or place to which the hearing or further hearing is adjourned —

1. the accused person does not appear before the court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and
   
2. if the complainant does not appear the court may dismiss the charge with or without costs.
   
3. If the accused person who has not appeared is charged with an indictable offence, or if the court refrains from convicting the accused person in his or her absence, the court shall issue a warrant for the apprehension of the accused person and cause him or her to be brought before the court.
   

11. The adversarial system of adjudicating of justice is based upon two main principles of natural justice; nemo iudex in causa sua, (no man a judge in his own cause) and audi alteram partem, (right to a fair hearing). The right of the accused to be present in the trial is one of essential components of the right to a fair hearing. Therefore, a hearing in the absence of the accused must be conducted in a fair and just manner as stipulated under the laws. In order to achieve the fairness of the proceedings, Section 171 (1) has specifically stated that the hearing must be conducted as if the accused were present.
    
12. Moreover, Section 172 of the Criminal Procedure Act has provided an opportunity to the accused who failed to attend during the hearing, to make an application in the Magistrates’ Court to get the conviction vacated. The Section 172 of the Act states that:
    

“If the court convicts the accused person in his or her absence, it may set aside the conviction upon being satisfied that the absence was from causes over which he or she had no control, and that there is an arguable defence on the merits.”

13. Accordingly, if the Magistrate’s Court satisfies that the absence of the accused was due to a reason which he had no control and he has an arguable defence, then the court has jurisdiction to set aside the conviction that was entered in his absence.
    
14. In view of Sections 171 and 172 of the Criminal Procedure Act, a conviction entered in the absence of the accused could not be considered as a final determination of the guilt, if the accused claims that his absence was due to reason which he had no control.
    
15. Therefore, an accused has no right to make an appeal to the High Court, against a conviction, entered in his absence, on the ground that his absence was due to a reason which he had no control. The High Court has no jurisdiction, pursuant to Section 246 of the Criminal Procedure Act to determine whether the absence of the accused in the hearing of the Magistrate’s Court was due to reason which he had no control. It is the jurisdiction of the learned Magistrate, under Section 172 of the Criminal Procedure Act, to hear and determine this issue, making the determination of the guilt of the accused a finality.
    
16. As discussed above, this application of the Appellant is based upon his contention that he had no control of his absence in the hearings on two main grounds, that he was not summoned or informed by the prosecution to the hearing date and also he was in remand custody on the date of the hearing. This Court has no jurisdiction to determine this contention of the Appellant, as it is the jurisdiction of the Magistrate’s Court to determine it, pursuant to section 172 of the Criminal Procedure Act.
    
17. In view of the reasons discussed above, I refuse this application and dismiss it accordingly.
    
18. The Appellant is advice to make this application in the Magistrate’s Court pursuant to Section 172 of the Criminal Procedure Act.
    
19. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe
Judge

At Suva
12^th April 2018

Solicitors
Appellant In Person
Office of the Director of Public Prosecutions for the Respondent.