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State v Singh [2014] FJMC 125; Criminal Case 2180.2013 (1 July 2014)

MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 2180 of 2013

State

.v.

Manoj Singh (1st Accused)
Rajesh Naidu (2nd Accused)

Representation and Appearances

For State: Mr R Kumar (DPP)
For 1st Accused: Present with Mr D Sharma and Ms N. Choo
For 2nd Accused: Present with Mr R. Naidu

RULING

Introduction

On 28th April 2014, Mr Devanesh Sharma appearing for the 1st accused in Court made preliminary submission on Sections 391, 392 and 393 of the Crimes Decree 2009 and Section 290 (1) (e) of the Criminal Procedure Decree 2009. The question posed was whether the State can commence proceedings under the Penal Code (Cap 17) after 1st February 2010?

The other issue raised by the Defence was the delay in bring the charge and the defence contended that as a result there has been breaches of the Constitutional Rights of the accused persons.

This Court gave the defence and the prosecution time to file written submissions. Written submissions have been made for the 1st and 2nd accused persons and by the Prosecution.

The Charges

The Charges that has been laid against the accused persons are as follows:

Statement of offence (a)

CONSPIRACY TO DEFEAT JUSTICE: Contrary to Section 131 (a) of the Penal Code (Cap 17).

Particulars of offence (b)

MANOJ SINGH and RAJESH NAIDU, on the 29th day of February, 2008 at Valelevu in the Central Division, conspired together to falsely accuse Josefini Adiqele Gaunavou and Nanise Lino of stealing a bottle of ghee.

The Submissions

In summary the submission for the accused persons are as follows; “The charge is brought under Section 131 (a) of the Penal code, Cap 17. The offence is alleged to have happened on 29th February 2008. The Crimes Decree came into force from 1st February... Section 392 (1) state that it preserves all criminal proceedings that were under the Penal Code and that were already commenced under the Penal Code prior to the Crimes Decree 2009 coming into force on 1st February 2010. ...an offence cannot be commenced or conducted under the Penal Code Cap 17 after the commencement date of the Crimes Decree 2009 as that right is not expressly preserved under Section 391, 392 or S.393.... that pursuant to Section 290 (1) (e) of the Criminal Procedure Decree there is no valid charge before the Court and hence the proceedings must be struck out. If a valid charge is not before the Court there cannot be a fair trial.”

For the second issue which is pre-trial delay the defence submitted that the alleged offence occurred on 28th February 2009. The 1st accused was charged on 23rd December 2013 and the 2nd accused was charged on 25th February 2014. The Defence position is that the 1st accused was charged 5 years after date of alleged offence and the 2nd accused was charged 5 years and 9 months from the date of alleged offence. The constitutional rights of the accused person have been breached. Specifically Sections 14, 15 and 26. Which are right to have cases heard within a reasonable time, a fair trial and that they must be treated equal before the law.

The Laws in Question

The first question which is before this Court deals with Chapter IV of the Crimes Decree which is in relation to repeals, savings and transitional provisions. It is provided as follows:

“Repeal of the Penal Code

391. — (1) The Penal Code is repealed.

(2) This section shall apply subject to sections 392 and 393.

Savings provisions

392. — (1) Nothing in this Decree affects the validity of any court proceedings for an offence under the Penal Code which has been commenced or conducted prior to the commencement of this Decree.

(2) When imposing sentences for any offence under the Penal Code which was committed prior to the commencement of this Decree, the court shall apply the penalties prescribed for that offence by the Penal Code.

Transitional provisions

393. — (1) for all purposes associated with the application of section 392, the Penal Code shall still apply to any offence committed against the Penal Code prior to the commencement of this Decree, and for the purposes of the proceedings relating to such offences the Penal Code shall be deemed to be still in force.”

Analysis

This Court has noted the submissions made by the Defence and the Prosecution. This Court has further noted the relevant laws and the Constitutional Provisions which have been cited.

The 1st issue which the defence has raised is a question whether the State can commence proceedings under the Penal Code (Cap 17) after 1st February 2010? The answer to this question lies within the relevant sections of the Crime Decree which has been reproduced above in this Ruling namely Sections 392 and 393. The same issue arose in the High Court in State v Chand [2010] FJHC 609; HAC009.2010 (12 March 2010), where Justice Madigan stated that “the laying of charges for offences prior to the 1st February 2010 does not come within the ambit of section 392, with the result that the first phrase of the section 393 (for all purposes associated with the application of section 392) is meaningless. If the new Decree was to apply to all offences, no matter when committed, then there would be no need for section 393 at all.”

Justice Madigan in analysing the issue further stated that “The prosecution relies on section 393(1) which states that the Penal Code shall apply to offences committed against that Code prior to the commencement of the Decree (i.e. 1 February 2010). The section reads as follows:

"S. 313(1) - For all purposes associated with the application of section 392, the Penal Code shall still apply to any offence committed against the Penal Code prior to the commencement of this Decree, and for the purposes of proceedings relating to such offences the Penal Code shall be deemed to be still in force."

The wording and intent of the section is very clear but the provision is obscured by the phrase "for all purposes associated with the application of section 392". Section 392 refers to proceedings already started or completed before the commencement of the Decree and refers in addition to sentencing. It reads:

"S. 392(l) - Nothing is this Decree affects the validity of any court proceedings for an offence under the Penal Code which has been commenced or conducted prior to the commencement of this Decree.

(2) When imposing sentences for any offence under the Penal Code which was committed prior to the commencement of this Decree, the court shall apply the penalties prescribed for that offence by the Penal Code."

It is quite evident that section 392 and section 293 should be read in conjunction with each other - section 392 for its own specific purposes and section 393 thereafter for all purposes." This Court is bound by this decision. For the foregoing reasons this Court finds that the Charge laid is proper and valid.

As to the second issue of pre-trial delays this Court notes that the Prosecution conceded that there is a Pre-Trial delay of over 5 years and 10 months. This in itself is not enough to strike out the Charge. The Defence are seeking to strike out the Charge for the delay that has been caused pre-trial and arguing amongst other issues that the accused persons will not get a fair trial. The trial for the accused persons has not commenced. There is no evidence before this Court that there will not be a fair trial for the accused persons. This Court finds that the charge having been properly made out should be promptly put to the accused persons and in the event the accused persons plead not guilty, the matter should immediately be set for hearing. From the information before it this Court does not note that there have been any breaches of the rights of the accused persons. The accused persons can be assured by this Court that they will be accorded a fair trial despite the length of time it has taken for the charges to be laid.

Court Orders – (a). The charges laid against the accused person is proper and valid.
(b). The Constitutional Rights of the accused persons to a fair trial has not been breached.

Chaitanya Lakshman
Resident Magistrate
1st July 2014