High Court of Fiji

For the accused to make an informed choice, he/she must be told of these rights. And, because the fa to communicate these rightrights, and the absence of proper representation may lead to a finding that a hearing was not fairly conducted, the person responsible for communicating these rights is the Magistrate before whom the accused first appears. Finally, for the right to be communicated at the most meaningful time, it must be explained before the plea is taken.

6. The court record is silent as to whether the court below informed the appellant of his rights under 14(2)(d) of the Constitution. But the court record shows that the appellant was aware of his rights. In his initial appearances he appeared in court with counsel of his choice. In the later part of the proceedings, his counsel of choice stopped appearing and the appellant was granted ample opportunity to engage counsel before the case was set for trial.

7. On 23 January 2018, the appellant waived his right to counsel and informed the learned magistrate that he was ready to take a trial date. The case was listed for trial on 13 September 2018. The appellant appeared in court on 13 September 2018 and informed the learned magistrate that he could not retrieve his disclosures from his former counsel and sought to vacate the trial. The learned magistrate in fairness vacated the trial and gave the appellant an opportunity to obtain a new set of disclosures from the prosecution. The learned magistrate adjourned the case to 10 December 2018 to fix a new trial date. On 10 December 2018 the learned magistrate fixed the case for hearing on 10 June 2019.

8. On 10 June 2019, the trial proceeded with the appellant representing himself. He now says he was prejudiced because he did not understand the proceedings due to language difficulty and that his rights were not explained to him in the language that he understood. Due to these complaints I called for the audio recordings of the trial proceedings to supplement the hand written notes of the learned magistrate.

9. The appellant is a Fijian of Indian decent. When he was arraigned on the charges he opted for the charges to be explained to him in Hindi language. The charges were explained to him in Hindi language by the official court interpreter. Thereafter, the proceedings were conducted in the official language of the courts, English.

10. At the trial, the appellant did not cross-examine the prosecution witnesses. Two of the prosecution witnesses (PW2 and PW6) gave evidence using Hindi language. The appellant’s spouse gave evidence using the English language. When the pathologist (PW9) concluded his examination in chief, the official court interpreter explained the appellant the purpose of cross examination in Hindi. The appellant chose not to ask any questions. After the close of the prosecution case, the learned magistrate explained the appellant his options which was translated to him in Hindi. The appellant opted to remain silent.
    
11. The fact that the appellant was unrepresented was his own making. It has been held that the right to counsel is not absolute. In Shankar v The State [2006] FJSC 14; CAV0008U.2005S (19 October 2006) the Supreme Court gave the following interpretation to the constitutional provision under the 1997 Constitution at [22]:
    

To construe s 28(1)(d) as conferring an absolute right to counsel of choiuld seriously impedimpede the administration of justice. Such a construction would, practically, be unworkable. It is implicit i section that the right to couns60;conferred rred thereby is qualified by consideratiorations of reasonableness. The Constitutional right is one which must be exercised at the proper time. It cannot be exercised on the eve of the trial to force an adjournment.

12. The appellant was accorded due process. He was accorded an opportunity to cross-examine or question the prosecution witnesses. He opted not to question the witnesses. The appellant was accorded his rights under section 179 of the Criminal Procedure Act. He exercised his right to remain silent. There is nothing in the record to suggest that the appellant did not understand his rights or the proceedings because of language barrier. In his caution interview the appellant opted to be interviewed in English language. His answers do not indicate that he has difficulty in communicating in or understanding the English language.
13. In her judgment, the learned magistrate analyzed all the evidence and was satisfied that the prosecution has proved guilt beyond reasonable doubt. The manner of driving was dangerous in the circumstances of this case. The injuries sustained by the victim as a result of the impact although was not direct but were a substantial cause of death. The identity of the appellant as the driver of the vehicle was established by his own admission and evidence of his spouse.
    
14. The evidence against the appellant was overwhelming and the trial did not miscarry due to the appellant being unrepresented. As Mason J said in McInnis v R [1979] HCA 65; (1979) 143 CLR 575 (19 December 1979) at [11]:

The question is primarily to be resolved by looking to the nature and strength of the Crown case and the nature of the defence which is made to it. If the Crown case is overwhelming then the absence of counsel cannot be said to have deprived the accused of a prospect of acquittal. If the accused in such a case has presented his defence with skill that may constitute some confirmation that conviction was inevitable in any event.

15. This court is satisfied that the appellant was not deprived of a reasonable prospect of acquittal due to being unrepresented at the trial.
    

16. For these reasons, the appeal is dismissed.

................................... .......

Hon. Mr Justice Daniel Goundar

Solicitors:
Maqbool & Company for Appellant

Office of the Director of Public Prosecutions for Respondent