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State v Sharma [2010] FJMC 168; Criminal Case 477.2007 (17 November 2010)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE NO. 477 OF 2007

STATE

V

PARVESH ANAD SHARMA

DATE OF RULING: 17th November 2010

For the State: Ms. Koto (DPP Office)
Accused: Mr. V.D. Sharma (Legal Aid Commission)

RULING

1] Accused is charged with two counts namely; obtaining money by false pretence and fraudulent conversion. This case has been going on since 05-04-2007. Accused was formally charged and he has pleaded not guilty to the both counts. Earlier he was released on bail. On the face of case record, court can see that several hearing dates were fixed but hearing was vacated due to various grounds and reasons. This case was called in normal cause list on 19-10-2010 and it was re-fixed mention for fix a hearing date on 03-12-2010. On 01-11-2010 accused filed notice of motion and it was called in open court inter-parte on 04-11-2010. In his application the accused moved that:

a) Accused be allowed to travel to Sydney Australia and reside at 8 Binnaway Avenue, Hoxton Park, New South Wales 2117, Australia from the 24th November 2010 to the 20th day of February 2011.

b) Accused presence be excused on the next scheduled date of 03rd December 2010.

2] State strongly objected to this application on following grounds. In the affidavit of DC 2771 Amit Nand states following facts are to be taken, inter alias, rejection of the application of the accused applicant.

a) Applicant is charge with serious offence and as such will not adhere to any court dates once he is allowed to travel abroad.

b) There is no guarantee the applicant will come back to Fiji for any court appearances or trial despite the given sureties.

c) There is no real need for the applicant to travel abroad, since most of his immediate family members will not attend the said family gathering.

d) Applicant has not demonstrated any special circumstances such as education, medical treatment or even death to necessitate travelling abroad.

e) It is rather unreasonable and suspicious for the applicant to travel abroad when two siblings are not travelling abroad.

3] I consider accused's application and prosecution's objection in this regard. As prosecution rightly pointed out that the alleged charges are serious offences. This court accepts this proposition. But, golden rule in criminal law is "accused is presumed innocent until guilty is proven beyond reasonable doubts by the prosecution. Therefore, the burden is laid on the prosecution. Accused has every right to enjoy his fundamental rights which are universally accepted in various international instruments. In line with these principles in consider this application should be allowed or refused.

4] This case is yet to be heard and determined. Case has been prolonged due to various reasons and it need not be reproduced or reiterated. Main issue is whether accused's application to go abroad should be granted or not. If court allowed this application will the accused appear for his trial/ hearing?

5] Prosecution admits that the accused does not have any previous conviction or pending cases apart from this case. On the case record, it could be ascertained that he has been regularly attended to the courts. Right to bail is presumed by law. In this case, court notes that there is no bail condition impounding passport or prohibiting going abroad previously. But, accused asked permission from this court as duty bound, law abiding person to go abroad. Thus, it shows that accused has no ulterior or sinister motive behind this application. He could have easily fled to Australia without informing the court as travel ban does not exist.

6] Man has unalienable Rights, which among these are Life, Liberty and the pursuit of Happiness is most important and valuable right. I quote US declaration for Independence, adopted in congress 04th July 1776

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, which among these are life, liberty and the pursuit of happiness".

7] According to Universal Declaration of Human Rights which was adopted by General Assembly resolution 217 A (III) of 10th December 1948, Article 13 provides;

"Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country".

8] Prosecution says there is no real need for the applicant to travel abroad and has not demonstrated any special circumstances such as education, medical treatment etc....further state says there is no guarantee the applicant will come back to Fiji for any court appearances. But along with the submission, applicant has tendered his tour liternary together with return air ticket. Australian visa has been issued to him and he will be flying on 23rd November 2010 and will be coming back 20th February 2011(Annexure B – Air ticket details). Thus, Accused has showed his bona fides to come back and face the trial.

9] As above universally adopted principles, this court holds that a right to liberty and the pursuit of happiness is including the travel abroad and meeting and gathering family friends as well. Though he is an accused of a criminal case, this right will not diminish. Prosecution cannot say there is no reason to visit and gathering his family or friends in Australia. Because, the Accused has a right to pursuit of happiness within the legal norms. Therefore, without any reasonable suspicion this court is reluctant to curtail these rights.

10] If the accused did not turn up for this case, can we try this case in absentia? Section 167(1) of the Fijian Criminal Procedure Decree provides trial in absentia. But punishment is too high in this case and this offence did not come under the purview of that section. But, I think this is a lacuna in Fijian Criminal Procedure. This section is narrowly constructed and this leads to delaying in proceeding and administration of justice in criminal matters. I reproduced Section 192 of the Sri Lankan Criminal Procedure Code of No: 15 of 1979.

"192. (1) Where the accused-

(a) is absconding or has left the Island;or

(b) is unable to attend or remain in court by reason of illness and either had consented to the commencement or continuance of the trial in his absence or such trial may commence and proceed or continue in his absence without prejudice to him; or

(c) by reason of his conduct in court is obstructing or impeding the progress of the trial,

the Magistrate may, if satisfied of these facts, commence and proceed with the trial in the absence of the accused.

(2) Where in the course of or within a reasonable time of the conclusion of the trial of an accused person under paragraph

(a) of subsection (1) the accused person appears in court and satisfies the court that his absence from the whole or part of the trial was bona fide, then-

(a) where the trial has not been concluded, the evidence led against the accused up to the time of his appearance before court shall be read to him and an opportunity afforded to him to cross-examine the witnesses who gave such evidence; and

(b) where the trial has been concluded, the court shall set aside the conviction and sentence, if any, and order that the accused be tried de novo"

(3) The provisions of subsection (2) shall not apply if the accused person had been defended by an attorney-at-law at the trial during his absence."

11] In that section, Sri Lankan system allows, with the permission of the court, solicitor could appear on behalf accused in his absence. If defence is called (case to answer) after closing of prosecution, accused could come and adduce his evidence. If the accused is absconding, case is proceeding without the accused. If charges are proved beyond reasonable doubt, the accused is convicted sentence is passed and open warrant will be issued to arrest the accused. If the accused is in out of the country, warrant will be executed through Interpol. Sentence will be activated after execution of the open warrant. At this stage, if the accused could show his bona fides for non appearance, de novo trial will be ordered on the application of the accused. In this scenario, court should not wait for absconding accuseds. This system has streamlined the procedure in Sri Lanka, as common law country this practise is persuasive to this court. This procedure could be adopted to Fijian system as well. In Sri Lanka, David Kannangara v. Central Finance Company Limited [2004] 2 Sri Lanka Law Reports 311, Amaratunga J held that every procedure is not expressly prohibited, is deemed to be permitted by the law (followed Liyanage v. Gamphaha Urban Council [1991] 1 Sri Lanka Reports 01.). Hence, this procedure could easily adopt for these types of cases. I cannot see any contrary position in Fijian Criminal Procedure Decree. This expands the sphere of section 167 of the Criminal Procedure Decree. Therefore, this system would be very useful for Fijian Criminal law system to minimise the law delays.

12] In the light of above reason, I allow applicant's both applications on following conditions.

1. Accused should give two sureties the value of $ 5000 each before he leaves the country.

His Brothers, Sanjai Anand Sharma and Rajesh Anand Sharma will sand as sureties

2. Accused has been excused for next court date-03rd December 2010 and hearing date will be set after 20th of February 2011.

100. The accused is warned not to evade the court proceeding and if he evaded, he may be tried in absentia and if convicted, will be sentenced accordingly.

4. The accused should come and face the hearing late February and no further extension will be granted for staying in abroad.
   

13] State's objection is therefore refused.

14] 28 days for appeal.

Sumudu Premachandra

Resident Magistrate