[1978] 24 FLR 63

IN THE FIJI COURT OF APPEAL

JASWANT PRASAD

v

REGINAM

[COURT OF APPEAL. 1978 (Gould V.P., Marsack J.A., Henry J.A.), 7th, 22nd March]

Criminal Jurisdiction

Criminal Law - practice and procedure - whether consultation in Chambers a breach of the requirement that court proceedings be held in public - effect of breach the Constitution of Fiji, Article 10(9).

Criminal Law - practice and procedure - hostile witness - effect of erroneous declaration.

During the course of the trial in the Magistrate's Court the Magistrate consulted with Counsel in his Chambers on a point of law. The appellant was not present. At a later stage in the trial the Magistrate erroneously declared a prosecution witness to be hostile.

Held:

(1) Although there had been a breach of the Constitutional requirement that court proceedings be held in public the appellant had not been prejudiced by what had occurred and therefore there had been no miscarriage of justice.

(2) The prosecution had not taken advantage of the erroneous declaration to cross examine the witness and therefore the appellant had not been prejudiced.

Cases referred to:

McBean v The Queen [1977] A.C. 537 P.C.
King v Reginam [1968] 2 All E.R. 610.
Poole v. Reginam [1960] 3 All E.R. 398 P.C.

Appeal against conviction from Supreme Court in its appellate jurisdiction.

M. S. Sahu Khan for the appellant.
I. Khan for the respondent.

Judgment of the Court (read by Gould, V.P.):

The appellant was convicted in the Magistrate's Court, Lautoka, on two counts of embezzlement contrary to section 306(a)(ii) of the Penal Code (Cap. 11) and sentenced to a term of imprisonment for 2 years and 4 months (on a count for embezzlement of $1000) and to a concurrent term of 1 year and six months (on a count for $120). On appeal to the Supreme Court against conviction and sentence the learned Judge, exercising the power of the Court under section 178 of the Criminal Procedure Code (Cap. 14), quashed the convictions for embezzlement and substituted therefor convictions for larceny by a servant contrary to section 306(a) of the Penal Code; he maintained the sentences passed by the Magistrate by dismissing the appeal against sentence, and we will advert to this again later in this judgment. The appellant has now brought the present appeal to this Court and on it he is limited by section 22(1) of the Court of Appeal Ordinance (Cap. 8) to questions of law.

There have been two main points taken on the appeal. The first, as expressed in Ground 1 reads:

"That the learned appellate Judge erred in not holding that there was a breach of Sections 10(9) of the Fiji Constitution and hence the trial of the appellant was a nullity inasmuch as that there was a breach, of the Constitutional right of the appellant in that the appellant was not given a fair hearing and all the proceedings in the Magistrate's Court did not take place in the public and in the presence of the appellant and this was in breach of section 10(9) of the Constitution of Fiji."

The facts relevant to this ground are that at one stage of the proceedings in the Magistrate's Court the learned magistrate requested counsel for the prosecution and the appellant to attend him in chambers. His purpose is recorded as being-"to review law on prosecution being allowed to permit a witness to refresh his memory." Counsel for both parties accordingly went into Chambers; the appellant did not, but it cannot be said that he was excluded. He had been sitting with his counsel in Court but it is not suggested that counsel made any request that he should be permitted to go with him into Chambers. The magistrate did not make any ruling-during this episode.

Mr Sahu Khan relies upon section 10(9) of the Fiji Constitution which reads:

"9. Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public."

The first question is whether the proceedings in Chambers were part of the proceedings of the Court. Mr Sahu Khan relied upon the case of McBean v. The Queen [1977] A.C. 537 decided by the Privy Council on appeal from Jamaica. The Constitution of that territory contained a section worded similarly to the Fiji section 10(9) except that the opening words of the Fiji section "Except with the agreement of all the parties thereto," do not appear. In the McBean case defence counsel wished to submit that the magistrate should disqualify himself from hearing the case on the ground of bias. The magistrate heard counsel's submissions in Chambers, where the accused was not present and ruled that it was unnecessary to disqualify himself. This all took place before any plea was taken.

Their Lordships said that where it is suggested or counsel ask to see the judge in his private room, it by no means follows that what occurs there is to be regarded as proceedings of the Court. In the case before them, however, the magistrate had given a ruling-"Court rules that the case will proceed" and their Lordships held that what happened in Chambers was part of the Court proceedings, even though it happened before the trial commenced.

In the present case all that the learned magistrate desired apparently was to check with counsel the law on the question of witnesses refreshing their memory. There was no ruling given and Mr Khan, for the respondent, sought to distinguish the case on that ground. If the magistrate had retired to his Chambers with a text book for the same purpose no question would have arisen. Nevertheless, though it may be a moot point, we incline to the view that what he did is to be regarded as part of the proceedings of the Court. He no doubt had a specific witness in mind and may have been influenced by counsel's views on the subject; the absence of a ruling is, we think, not decisive. Nor do we consider that it is a case where the parties could have been said to agree, within the meaning of section 10(9), upon the course pursued, as counsel for the appellant had, at least at first, been unwilling.

Mr Sahu Khan has argued that in these circumstances the trial was a nullity but we are unable to agree and it is clearly contrary to the view of the Privy Council in the McBean case. They said in their judgment at pp.546-7-

"If the proceedings in Chambers were in breach of section 20(3) of the Constitution, that breach did not of itself render the subsequent proceedings a nullity. …........................ The breach, if there was one, did not affect the hearing of the case and that being the position, their Lordships do not consider that the convictions can be assailed as invalid."

We are of opinion that the position is the same here. The absence of the appellant from Chambers may have constituted an irregularity, but it is one by which the appellant was in no way prejudiced and no miscarriage of justice occurred. As the Privy Council observed in Poole v. Reginam [1960] 3 All E.R. 398, 400 after an argument that even temporary absence of the accused from his trial in a case of felony vitiated the whole trial-

"Their Lordships ... would only observe that the decision in such cases must always be a matter of degree. The consequences of accepting to the full the submission of counsel for the appellant would result (to take an extreme case) in vitiating a trial because a formal witness had given his name and address in the witness-box after an adjournment and it had not been noticed that the prisoner had not yet brought up from the cells. On the other hand it is not difficult to envisage many instances in which his absence would be fatal."

We would add that the fact that a common law right has been embodied in a written constitution does not in our opinion take away the powers and discretions of Courts in relation to irregularities concerning those rights- seeking King v. Reginam [1968] 2 All E.R. 610. What happened here resulted in no miscarriage of justice and this ground of appeal therefore fails.

The second and third grounds of appeal relate to only one matter and are as follows:

"2. That the learned Appellate Judge erred in not holding that the learned trial Magistrate erred in law and in fact in declaring the witness Eroni Mua as hostile and thereby miscarriage of justice occurred.

3. That the learned Appellate Judge erred in not holding that the learned trial Magistrate erred in law and in fact in accepting the evidence of the 8th prosecution witness Eroni Mua and acting on such evidence."

The witness referred to had been declared hostile by the magistrate at a stage at which there was no reason apparent on the record for such a declaration to have been made. A statement which he had made to the police was then used more to refresh his memory than by way of cross-examination. The magistrate clarified this in his judgment where he said:

"I say that Mr Mua's (PW8) situation is similar to the above and that his evidence may therefore be properly admitted and considered similarly as in the above quoted instance because his sworn testimony did not after some initial hesitancy, differ from his previous statement to the police. I previously ruled that the accused's testimony be treated as hostile because his earlier bearing in court showed a certain animosity towards his ex-employer and thus to the prosecution because of what he termed his unfair dismissal. However; in the light of what followed I am satisfied that he failed to accord with his earlier statement because Defence Counsel had refused to allow an opportunity to him to see certain material cheques which subsequently brought to light those matters on which he was questioned. I therefore do accept that this is the reason for PW8's apparent previous hostility though nevertheless do approach his evidence with caution."

This same question was argued before the learned Judge in the Supreme Court and he dealt with it as follows:

"In the instant case the learned magistrate had prematurely permitted the witness to be treated as hostile. The witness simply had difficulty in remembering. When certain parts of his statement were then read to him the witness, Eroni, accepted them as true. As it happens, before he was most erroneously declared hostile. P.W. 8. Eroni, had been shown the cheque Ex. 5 for $1,000 (count 2) and said that he had received it from the accused. He also said the same in relation to the $120 cheque Ex. 6. The only portions of his police statement which were read out for his verification or denial, referred to a cheque Ex. 1 and were related to count 1 of which the appellant was acquitted. P.W.8's answers were to verify those portions of his statement relating to count 1. Thereafter no leading questions were put to him. With regard to the $1,000 cheque Ex. 5 and the $120 cheque Ex. 6 in counts 2 & 3 respectively the examination-in-chief of P.W.8 went as follows:

Q.: Look at cheque M.F.I. 5 ($1,000) what did you do with it?

A.: I cashed the cheque and gave the accused cash for $1,000.

Q.: See M.F.I. 6 what did you do with this?

A.: I cashed this cheque for the accused and gave him $120.00.

There was nothing leading in those questions and the prosecutor was not then putting the witness's statement directly to him as one would to a hostile witness.

As it transpired no prosecution evidence material to counts 2 & 3 was adduced from P.W. 8 by way of any leading questions as a result of the magistrate's error. The magistrate later recognised his error in having allowed Eroni to be treated as hostile.

Grounds 4 & 6 fail."

In the learned Judge's view therefore no cross-examination in the true sense in relation to the charges upon which the appellant was convicted resulted from the error made by the magistrate and therefore no prejudice arose. Mr Sahu Khan did not challenge in this Court the accuracy of the analysis of the learned Judge of the evidence of the witness and there is no reason for us to hold that the learned Judge, in deciding in effect that no miscarriage of justice arose, fell into an error of law.

The remaining two grounds of appeal are directed to the sentence and presumably it is hoped that in some way a reduction of the term of imprisonment will result. As we have indicated, this appeal is confined to questions of law and the section emphasizes this by adding "(not including severity of sentence)".

Even had we considered therefore that the sentence was manifestly excessive or erred in principle (which in fact we do not) it would not be open to us to interfere. There is one matter, however which requires adjustment. The learned Judge considered the sentence passed by the magistrate and additional relevant evidence given at the appeal and in dismissing the appeal against sentence indicated that he agreed with the magistrate's assessment intending no doubt that the sentence should run from the same date. The learned Judge may have overlooked, that in substituting convictions for different offences he had quashed the previous convictions and sentences imposed in respect of them could no longer be valid. It was incumbent upon the learned Judge to pass sentences anew on the new convictions, presumably if we understand his intentions aright, of the same extent and to run from the same date. We therefore remit the case to the Supreme Court to enable the learned Judge to make the necessary order. Subject to this order the appeals are dismissed.

Appeal dismissed; case remitted to Supreme Court for .sentence.

Gould V.P.,
Marsack J.A.,
Henry J.A.