IN THE MAGISTRATES COURT OF FIJI
AT LAUTOKA
EXTENDED CRIMINAL JURISDICTION

High Court Criminal Case No. 44 of 2017
Magistrates’ Court Criminal Case No. 78 of 2017

STATE

v.

JOSUA LATU

For the State:	 Sergeant A. Chand
For the Defendant: Legal Aid Commission

TRIAL IN ABSENTIA RULING
___________________________________________________________________________

1.	You stand charged for Aggravated Robbery contrary to section 311 (1) (a) of the Crimes Act 2009 in that you “with another on the 31st day of January, 2017 at Lautoka in the Western Division robbed Sitara Begum of $200.00 cash.” This is an indictable offence.

2.	You were produced in court in custody and on 8 March 2017, the State served its disclosures on you. On 21 March 2017, you were arraigned. You said you understood the Charge against you, and you said you wanted Legal Aid and you entered a plea of not guilty to the Charge. You had made admissions against interest and so the criminal trial proceedings adjourned to give you time to get a lawyer and file your voir dire grounds.

3.	You appeared with your Legal Aid lawyer on 1 May 2017 and on 12 June 2017, the Court scheduled your voir dire hearing to 27 June 2017. That did not take place but on 22 October 2018, the criminal trial proceedings were fixed to 7 January 2019 for mention to fix a trial date. You appeared on 7 January 2019 but failed to appear on the next call date of 8 January 2019. A bench warrant was issued. You failed to turn up to Court for any of your scheduled appearances in 2019.

4.	On 10 January 2020, the State filed a Report. The Report shows that checks were made with the Fiji Correctional Services and that you were not incarcerated at the Fiji Correctional Services nor remanded at either the Suva Remand Centre or at Vaturekuka or at Natabua. Several checks were made at your place of residence and the Police Officer who filled in the Report said that you had been seen in Suva by a Detective Constable Tevita of Nabua Police Station in December 2019.

The Law

5.	Section 14 (2) (h) of the Constitution guarantees the following:

	“14. – (2) Every person charged with an offence has the right – 
			(h) to be present when being tried, unless –
(i) the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend;
(ii) the conduct of the person is such that the continuation of proceedings in his or her presence is impractical and the court has ordered him or her to be removed and the trial to proceed in his or her absence.”

6.	Section 171 of the Criminal Procedure Act 2009 provides:

“171. (1) If at the time and place to which the hearing or further hearing is adjourned –
(a)	the accused person does not appear before the court which has made the order of adjournment the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and
(b)	if the complainant does not appear the court may dismiss the charge with or without costs.

(2) If the accused person who has not appeared is charged with an indictable offence, or if the court refrains from convicting the accused person in his or her absence, the court shall issue a warrant for apprehension of the accused person and cause him or her to be brought before court.”

7.	Pursuant to section 7 (1) (b) of the Constitution, a Court may, if relevant, consider international law applicable to the rights and protection of the rights and freedoms contained in our Bill of Rights.

8.	In The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, Case No.: STL-11-01/PT/AC/AR126.1 [2012] STLB 11; 1 November 2012 (In Absentia Reconsideration AC) [2012] STLB 11 (1 November 2012), the Appeals Chamber for the Special Tribunal for Lebanon upheld the Tribunal’s decision to hold a trial in absentia. 

9.	The Appeals Court held that there must be reasonable steps taken to notify the Accused of the proceedings; the evidence of notification must be such so as to satisfy the Court that the Accused actually knew of the proceedings against them; and the evidence must satisfy the Court with a reasonable degree of specificity that the Accused’s absence means they must have elected not to attend the hearing and have therefore waived their right to be present.

10.	In Stoyanov v. Bulgaria – 39206/07 [2012] ECHR 184 (31 January 2012), the European Court of Human Rights held that trial courts had the discretion to order trials in absentia in circumstances where a Defendant has received notification of his or her trial and does not wish to take part in it. The following is a useful articulation of the due process considerations involved:

“31. The Court has not ruled out the possibility that, in the absence of official notification, certain established facts might provide an unequivocal indication that the accused is aware of the existence of criminal proceedings against him and of the nature and the cause of the accusation and that he does not intend to take part in the trial or wishes to avoid prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities, Iavarazzo v. Italy (dec.), no. 50489/99, 4 December 2001), or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces (see Sejdovic, cited above, § 99). Such circumstances are to be distinguished from the outright fact of fleeing from the crime scene in fear of prosecution or a general expectation that criminal proceedings might be instituted, which are not sufficient to justify the assumption that the accused was aware of the proceedings for the determination of the charges against him and has waived his right to appear in court. An assumption of that kind would risk undermining the very concept of the right to a public hearing within the meaning of Article 6 § 1 of the Convention as well as the notion of an effective defence guaranteed under Article 6 § 3 of the Convention, which includes the right of the accused to be informed promptly of the nature and cause of the charges against him, to have adequate time and facilities for the preparation of the defence and to examine or have examined witnesses against him.

The Court has not ruled out the possibility that, in the absence of official notification, certain established facts might provide an unequivocal indication that the accused is aware of the existence of criminal proceedings against him and of the nature and the cause of the accusation and that he does not intend to take part in the trial or wishes to avoid prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities, Iavarazzo v. Italy (dec.), no. 50489/99, 4 December 2001), or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces (see Sejdovic, cited above, § 99). Such circumstances are to be distinguished from the outright fact of fleeing from the crime scene in fear of prosecution or a general expectation that criminal proceedings might be instituted, which are not sufficient to justify the assumption that the accused was aware of the proceedings for the determination of the charges against him and has waived his right to appear in court. An assumption of that kind would risk undermining the very concept of the right to a public hearing within the meaning of Article 6 § 1 of the Convention as well as the notion of an effective defence guaranteed under Article 6 § 3 of the Convention, which includes the right of the accused to be informed promptly of the nature and cause of the charges against him, to have adequate time and facilities for the preparation of the defence and to examine or have examined witnesses against him.
	
32.	For a trial in absentia to be justified, what is decisive is whether the facts of the case show unequivocally that the applicant was sufficiently aware of the opportunity to exercise these rights in the context of the specific proceedings instituted against him and whether he might be considered to have waived his right to appear in court. In the absence of any notification this right can neither be seen to have been clearly waived nor exercised effectively.

33.	 In the Court’s view, no such circumstances have been established in the instant case. In this respect the present case discloses no material difference from the case of Sejdovic, cited above. The mere absence of the applicant from his home is insufficient to consider that he was aware of the proceedings and, consequently, had absconded (see Shkalla v. Albania, no. 26866/05, § 73, 10 May 2011, Hu v. Italy, no. 5941/04, § 55, 28 September 2006, and Sejdovic, cited above, § 100). The Government’s argument is not based on any objective factors viewed in the light of the evidence against the applicant; it assumes that the applicant was responsible for the killing of his girlfriend. As in Sejdovic, the Court is unable to accept this argument, which also runs counter to the presumption of innocence.

34.	In previous cases concerning convictions in absentia the Court has held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights; vague and informal knowledge cannot suffice (see T. v. Italy, 12 October 1992, § 28, Series A no. 245 C, and Somogyi v. Italy, no. 67972/01, § 75, ECHR 2004 IV). In the instant case it has not been shown by the respondent Government that the applicant had sufficient knowledge of the investigation opened on 24 September 2002 and the concrete charges brought against him on 20 November 2003.”

11.	Closer to home, we have the following clearly articulated principles to follow. 

12.	In Chand v State [2017] FJHC 865; HAA13.2017 (17 November 2017) his Lordship Perera J. made clear that the mere absence of a Defendant on the date fixed for trial or hearing is not sufficient to proceed in his or her absence. The Court must first be satisfied that the Defendant has voluntarily waived his or her right to be present.

13.	In Tulava v. State [2018] FJHC 1057; HAA37.2018 (29 October 2018) his Lordship Aluthge J at [19] made clear that Section 171 of the Criminal Procedure Act 2009 must be read in the spirit of section 14 (2)(h) of the Constitution. His Lordship made clear that what this means is that before proceeding to a trial in the Defendant’s absence, the Court must be satisfied that the Defendant has been served with a summons or similar process requiring his or her attendance at the trial and the Court must be satisfied that the Defendant has chosen not to be present. In respect of the latter, Aluthge J. makes clear, the Court must have some evidence before it in the form of a police report or affidavit to satisfy it that the Defendant has indeed chosen not to be present.

14.	In Kumar v. State [2016] FJHC 397; HAA 03 of 2016 (2 May 2016) his Lordship Aluthge J. held that the word trial at section 14 (2) (h) of the Constitution means both trial proper and trial within a trial. 

15.	In Kumar v. State, supra his Lordship Aluthge J. clarified that where a Defendant absconds bail, the Court must first issue a bench warrant and then obtain evidence by way of either a police report or an affidavit to satisfy it that the Defendant has indeed chosen not to be present. However, Aluthge J. carved out this exception. Where the Court has received notice through Counsel for the Defendant and confirmation from the Fiji Corrections Service that a Defendant has escaped from remand there is no need for the issuance of a bench warrant. The Court may safely treat that as a voluntary waiver of a Defendant’s right not to be present and may proceed to holding a trial within a trial and a trial in the Defendant’s absence.

16.	In Fiji Independent Commission against Corruption v. Nemani [2012] FJHC 1309; HAC37A.10 (3 September 2012) the Court per Fernando J. held that Defendants’ who voluntarily abscond from Courts may be tried in absentia: [20]. The Defendant in that case had fled the jurisdiction of the Court. She travelled to New Zealand without leave of the Court: [21]. 

17.	In Drova v. State [2012] FJHC 1304; HAA23.2012 (31 August 2012) per Madigan J. at [8], the Court held that there was no reason why the appellant should not have been tried in absentia, especially when in the knowledge of the hearing date he deliberately absented himself by leaving the jurisdiction. By doing so he is waiving all rights to be heard at the hearing.

18.	In R v O'Hare [2006] EWCA Crim 471, [2006] Crim LR 950, the Court said:

"We have taken into account that the Appellant was 18 at the time. Nonetheless we are sure that the Appellant appreciated that by absconding the trial was likely to proceed in his absence. As he made no attempt to contact his solicitor from Ireland, he plainly appreciated that his solicitor would be unable to put forward a case on his behalf at trial and arrange representation for him. In those circumstances, we consider that the Appellant waived his rights."

Findings

19.	You knew that these criminal proceedings were afoot. You knew what the Charge is and you had due process notice of the evidence the State intend to rely on. More importantly, you knew that the proceedings were moving toward voir dire hearing and ultimately trial.

20.	You are not remanded or incarcerated anywhere in Fiji, you are not at home and you have been seen in Suva by a Police Officer. It is clear to me that you are at large and have simply chosen not to attend Court. Being satisfied that you have constructive knowledge of your trial and being satisfied that you have chosen not to attend these criminal trial proceedings, I order that the proceedings go to trial in your absence.

21.	In accordance with my overarching duty of fairness to you, I will hold a voir dire hearing and then move to trial. 

22.	As was said by Lord Steyn in Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 at 118:

“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides.” 

23.	I will not permit your choice not to attend Court to delay bringing this matter to a just conclusion.

---------------------------
Seini K Puamau
RESIDENT MAGISTRATE

DATED at LAUTOKA this		day of 			2020