IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: 1744/2008

STATE

V

GANESWAR Raj

Counsel: Mr. Paka for the State 
 : Mr .I. Khan for the Accused 

Date of Hearing : 29th December 2014
Date of Ruling:29th December 2014 
 
RULING

1.	The accused is charged with 04 counts of Fraudulent Conversion contrary to section 279(b) of the Penal Code , Cap 17. This is an electable offence under the Penal Code and even though he took his plea on 14th June 2011 he was not explained about thatat that time . Therefore on 10th December 2014 when this was called before me I took his plea again and with the present of his counsel the accused elected this Court and pleaded not guilty for this charge . The hearing is already fixed for 22nd and 23rd January 2015. 

2.	Today the learned counsel for the accused made an application to vacate his election so he can elect the High Court for this case. The counsel failed to give any reasons apart from saying that was his instruction from his client. The State is objecting to this application. 

3.	The approach a magistrate court should adopt in such a situation in England was discussed by McCullough J in Birmingham Justices, ex parte Hodgson[1985] QB 1131. The following propositions emerge from his judgment:

(a)	The magistrates have a discretion to permit the accused to withdraw and election for summary trial, not withstanding that the MCA 1980,s. 20(3)(a)(s.20(9)(a) in the version of s.20 inserted by the CJA 2003), provides that if an accused consents to be tried summarily, the court shall proceed to summary trial. The existence of this discretion was affirmed by Craske, ex parte Metropolitan Police Commissioner[1975] 2 QB 591. Devlin J said (at pp. 599 – 600):

 "I do not think that [the use of the word 'shall'] means that once the procedure is set in motion, the court has ineluctably to allow the wheels to revolve without any power to stop them if the accused wants to change his mind…I can find nothing…which would deprive a magistrate…of the ordinary right which they must have in the interests of justice of allowing n accused who has given his consent ill-advised to abandoning his right to trial by jury, to be given the opportunity of reconsidering it."

It would seem that the accused can in theory be allowed to re-elect even after his trial on a not guilty plea has begun. However, it is submitted that, once a significant portion of the prosecution evidence has been given, a change of election should be allowed only in very exceptional circumstances, since otherwise the defence might be tempted to ask to re-elect as a tactical ploy simply because the trial seems to be going badly.

(b)	In exercising their discretion whether or not to accede to an application to re-elect, magistrates must have regard to the 'broadjustice' of the situation (per Lord Widgery CJ in Southampton Justice, ex parte Briggs [1972] 1 WLR 277 at p. 280). They are entitled to take into account: (i) that the defendant had his rights as to mode of trial fully explained to him; (ii) that he understood those rights; (iii) that he voluntarily consented to be tried summarily; and (iv) that there were no unusual, difficult or grave features in the case (Lambeth Metropolitan Stipendiary Magistrate, ex parte Wright [1974] Crim LR 444, as explained by McCullough J in Ex parte Hodgson [1985] QB 1131 at p. 1140A-C).

(c)	Since one of the most important factors in the mind of an accused deciding which court he would like to deal with his case is whether or not he believes he has any defence, an election for summary trial made when unrepresented and intending to plead guilty through a misunderstanding of the law is invalid because, even if the accused understands the nature of the choice put to him in the sense of knowing the difference between trial on indictment and summary trial, he does not truly appreciate the significance of the choice for him (Ex parte Hodgson, see especially p. 1146D-H).

(d)	It is implicit in the judgment of McCullough J that the fact that the accused was unrepresented when he elected summary trial is not sufficient by itself to compel the court to allow a withdrawal of election, even if e is subsequently advised that trial on indictment would be preferable. Conversely, although having had legal advice before electing would obviously be a very powerful argument against an application to re-elect, there is no reason to suppose that it must inevitably be decisive. In Highbury Corner Metropolitan Stipendiary Magistrate, ex parte Weekes [1985] QB 1147, McCullough J (at app. 1152F-1153A) held that there is no rule of law that a magistrates' court must adjourn before putting an unrepresented accused to his election so as to allow him to apply for legal aid.

(e)	Most important, where the material before the magistrates shows that the accused, when he elected summary trial, did not properly understand the 'nature and significance' of the choice put to him, the broad justice of the situation demands that he be allowed to re-elect (Ex parte Hodgson [1985] QB 1131 at p. 1144-5).

4.	Having considered the above mentioned legal principles as now I would proceed to pronounce the ruling for this application . The accused took his plea for this charge before me on 10th December 2014. He was explained about his right about the election and after discussing with his counsel elected this Court and already this has been fixed for hearing on 22nd and 23rd January 2015. 

5.	These alleged incidents happened in 2008 and this case has been pending in this Court from 03rd October 2008. The accused also failed to give any valid reasons for vacating his election and to be tried in High Court. Also I note that if this is transferred to High Court most likely the hearing can be taken place only around in 2016 or 2017 with the busy schedules in the High Court. 

6.	After considering the reasons mentioned above I do not see any reason to vacate his election which would delay this case . Therefore I reject this application . 

H.S.P.Somaratne
Resident Magistrate, Suva