Singh v State [2004] FJCA 27; AAU0009.2004 (16 July 2004)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0009 OF 2004S
(High Court Criminal Action No. HAA056 of 2003S)

BETWEEN:

ABHAY KUMAR SINGH
Appellant

AND:

THE STATE
Respondent

Coram: Ward, P
Gallen, JA
Penlington, JA

Hearing: Tuesday, 6 July 2004, Suva

Counsel: Mr. G. P. Shankar for the Appellant
Mr. P. Ridgeway for the Respondent

Date of Judgment: Friday, 16 July 2004

JUDGMENT OF THE COURT

This is an appeal on a question of law under s.22(1) of the Court of Appeal Act Cap. 12 as amended. It concerns the proper construction and application of the Criminal Procedure (Amendment) Act No. 13/2003.

Background

The appellant is a barrister and solicitor. He has a legal practice at Nausori. He faces three charges of attempting to pervert the course of justice. The gist of the three charges is that he attempted to induce a state witness in a corruption case, in which he, the Appellant, was engaged as counsel for the accused, to give false evidence in the pending trial or to leave the jurisdiction and be unavailable to give evidence until the trial was over. The charges are preferred under s.131 of the Penal Code Cap 17.

The charges were filed in the Magistrates Court at Suva on 25 July 2003. The case was called in the Magistrates Court on the same day. The appellant pleaded not guilty to all three charges. The case was then adjourned until 1 August for disclosure. It was then adjourned successively to 15 August and 18 August. On the latter date the prosecution confirmed that it wanted a further statement from a State witness. Accordingly the case was adjourned to 29 August for mention.

When the case was called on 29 August there was a discussion on the release of the Appellant’s passport, this being relevant to bail. By consent the case was again adjourned, this time to 31 October for mention.

Here, it is to be noted that earlier on 18 September 2003 the President assented to the Criminal Procedure (Amendment) Act No 13/2003 s.1(2) provided that that Act was to come into force on a date appointed by the Minister by Notice in the Gazette. In the event the Amendment Act came into force on 13 October 2003.

On 31 October the case was again adjourned by consent to 3 November for mention. On the latter date the prosecution in reliance on s.220 (as recently amended) and s.222 of the Criminal Procedure Code Cap. 21 applied for the matter to be tried in the High Court. The Appellant by his counsel objected to the transfer. He sought reasons from the prosecution. That request was declined on the ground that the prosecution was not obliged to give any reasons. The Appellant’s counsel however did not dispute the powers contained in s.220. The Magistrate granted the application, observing that he was now without jurisdiction. The case was adjourned until 28 November for mention in the High Court.

On 20 November 2003 which was after the transfer order, the Chief Justice the Hon. Daniel Fatiaki issued Practice Direction No. 1 of 2003 relating to the transfer of cases to the High Court. We shall refer to this Practice Direction later in the judgment.

The Appellant then appealed to the High Court. He challenged the order made by the Magistrate on the application of the Prosecution to transfer the proceeding to the High Court. The appeal came on for hearing before Shameem J. on 13 February 2004. In a judgment delivered on 23 February 2004 the judge affirmed the Magistrate’s order and dismissed the appeal.

The Criminal Procedure Code (Amendment) Act No. 13/2003

The Amendment Act abolished the preliminary enquiry and committal proceedings in the Magistrates Court and made a number of changes to the procedure for the transfer of proceedings from the Magistrates Court to the High Court.

Central to this appeal are first s.220 in its old and new form and s.15, the only transitional provision in the Amendment Act.

Section 220 in its old form provided:

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions hereinafter contained, and in such case the provisions of section 235 shall not apply”

Section 7 of the Amendment Act amended s.220. In its new form it provides:-

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the calling of evidence at the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII.”

It is to be noted that the changes concerned the right of the prosecutor to apply for a transfer of the proceedings from the Magistrates Court to the High Court. The effect of the amendments to s.220 was first, that an application for transfer could be made by the Prosecutor before the calling of the evidence instead of before the commencement of the trial and secondly that the transfer would take place without a preliminary inquiry (which, of course, was consistent with other provisions in the Amendment Act which abolished the preliminary inquiry.)

Section 15, the transitional provision, provides:-

“This Act does not apply to charges for electable offences pending in the magistrate’s courts before the commencement of this Act except where the accused person consented to his or her case being transferred to the High Court under the new section 226”

By way of explanation there are electable and non-electable offences. A list of electable offences is set out in the Electable Offences Decree 1998 (see Gazette 4 March 1988). A charge preferred under s.131 of the Penal Code (the section in point in this case) is a non-electable offence.

The High Court Appeal

In the High Court the Appellant relied on paragraph 6 of the Chief Justices Practice Direction No. 1 of 2003. It provides:-

“The amendment Act applies only to criminal charges filed after the 13^th of October 2003. Those accused persons whose charges were filed prior to that date are still entitled to the old Preliminary Inquiry procedures.”

The Appellant contended that s.15 of Amendment Act applies to all accused persons where the charge was filed before 13 October 2003 (the date of the commencement of the Amendment Act) whether the charge was an electable offence or a non-electable offence. He, further contended that s.220 in its old form was applicable to the appellant’s case as he had been charged before the Amendment Act came into force and that the trial had commenced when he pleaded not guilty to the charges and that accordingly it was too late for the prosecutor to apply for a transfer.

Shameem J. rejected these contentions. She found:-

“Section 15 of the Amendment Act provides in very clear terms and without any ambiguity that the option to request the old procedures applied only to accused persons charged with electable offences before the 13^th of October 2003. There is no dispute at all that the Appellant is not charged with electable offences. The section does not apply to non-electable offences such as murder, or to cases subject to section 220 application. Thus, even where a charge is laid before the 13^th of October, 2003, a Magistrate who considers that the case is more suited for High Court trial, may order transfer under the new section 226 as long as the offence was non-electable. It follows that in this case, the prosecutor could make the application for the new-style transfer because he made it after the 13^th of October 2003, and the offences are non-electable.”

and a little later:-

“Counsel for the Appellant suggests that this means that section 15 of the Amendment Act applies to all accused persons, whether charged with electable offences or not. With respect, I cannot agree. A Practice Direction cannot amend legislation. Section 15 clearly applies only to accused persons charged with electable offences. Paragraph 6 of the Practice Direction must therefore be assumed to apply to those accused persons specified in section 15 of the Amendment Act. It does not apply to the Appellant.”

The judge having reached these conclusions found it unnecessary to consider the question of whether the trial had commenced with the plea of not guilty. She observed however that the argument of the appellant had not persuaded her to depart from her decision made in respect of the old section 220 in Rajnesh Rajeshwar Prasad vs. State Cr. App. HAA031/2003S, wherein she found that the state could make a section 220 application at any time before it opened its case in the Magistrates Court.

The Appellant now appeals to this Court against the judgment of Shameem J. which had the effect of affirming the Magistrate‘s order transferring the appellant’s case to the High Court.

The Appellant’s Contentions on this Appeal

In this Court the Appellant once again contended that his case was outside the reach of the new section 220 and that Shameem J. had accordingly erred in law in finding that it was available to the prosecutor to invoke.

Mr. G. P. Shankar conducted the appeal in this Court. He was not counsel in the High Court. He explained that the appellant was charged in the Magistrates Court on 25 July 2003 with non-electable offences and that the Amendment Act was not in force at the time the appellant was charged and pleaded. Mr. Shankar accepted that under the old section 220 there could be a transfer to the High Court in the two circumstances stated therein, namely if it appeared to a Magistrate either before or during the course of a summary trial in that court that the case was one which ought to be tried in the High Court; and secondly if – and he emphasised the next words – before the commencement of the trial in the Magistrates Court the prosecutor applied for a transfer. Counsel accepted that in those circumstances the Magistrate was required not to proceed with the summary trial but, instead, to hold a preliminary hearing as the first step towards a High Court trial. Mr Shankar recognized that under the old section 220 an accused was not entitled to seek a High Court trial.

While Mr Shankar conceded that section 15 is confined to electable offences he nevertheless submitted first that “similar considerations should apply to non-electable offences” and that accordingly the old section 220 applies to the appellant’s case.

Then on the assumption that that submission was accepted, he contended that that section was no longer available to the prosecutor because the appellant had pleaded not guilty to the charges in the Magistrates Court and the trial had commenced. In short he submitted that the prosecutor’s application was too late. Mr Shankar, in support of the submission that the trial had commenced on the entry of the pleas, relied on a decision of Fatiaki J in State v. Preet Singh Verma Cr. App. No: 0039 of 2001. He asked us to decline to follow the later decision of Shameem J. in Prasad in which Shameem J. had declined to follow Fatiaki J.

Next Mr Shankar submitted that section 15 of the Amendment Act was open to “double construction” and that the new section 220 could not have retrospective effect.

Mr Shankar’s argument on the Chief Justice’s Practice Direction differed from that which had been advanced to Shameem J. In this Court Mr Shankar, while accepting that the Practice Direction could not amend an Act of Parliament, maintained that it explained the Amendment Act and, in effect, confirmed the construction contended for by the Appellant, namely, that the old section 220 applied to the appellant’s case.

In the oral hearing before us Mr. Shankar did not pursue a number of other arguments arising out of the 1997 Constitution which had been put forward in the written submissions filed on behalf of the Appellant ahead of the hearing.

The DPP’s Contentions on this Appeal

Mr Ridgeway for the Director of Public Prosecutions sought to uphold the judgment of Shameem J. which affirmed the order of the Magistrate transferring the proceedings to the High Court.

Mr Ridgeway submitted that section 15 was quite plain and that it did not have “a double construction” as contended for by Mr Shankar. Mr Ridgeway contended that Parliament had deliberately drawn a distinction between electable and non-electable offences in section 15. It had preserved the old procedures for electable offences only. It followed, so Mr Ridgeway submitted, that the new section 220 applied to the appellant’s case as he was charged with non-electable offences and that as such this case was not within section 15.

Mr Ridgeway further submitted that even although the new section 220 had a retrospective effect it was a procedural provision concerning the manner of trial and was an exception to the common law rule that a statute ought not to be given retrospective operation. In support of this submission he cited from the judgment of the High Court of Australia (Mason CJ, Dawson Toohey, Gaudron and McHugh JJ) in Rodway v The Queen (1989 – [1990] HCA 19; 1990) 169 CLR 515 at p.518 where Their Honours said :-

“The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.”

Our Consideration of the Submissions and Our Decision

We consider that the appeal can be dealt with quite shortly. In our view the outcome turns on the proper construction of section 15, the only transitional provision in the Amendment Act and the consequences of that construction. We agree with Mr Ridgeway’s submission that section 15 is quite plain in its meaning. We conclude that that provision creates an exception from the application of the remainder of the Amendment Act. It provides that the Amendment Act does not apply to charges for electable offences pending in the Magistrates Court before the commencement of the Act i.e 13 October 2003, unless the accused has consented to a transfer to the High Court under the new section 226 (which of course is not in point). We consider that this is an understandable exception in that before the Amendment Act came into effect a person charged with an electable offence had a right of election as to the mode of trial and the right to a preliminary hearing if he elected a High Court trial. Parliament by this transitional provision has preserved that right.

We are unable to accept Mr Shankar’s submission that “similar considerations should apply to non-electable offences” which would result in the old section 220 applying to the appellant. In our view, as Mr Ridgeway submitted, had Parliament intended to exclude cases from the operation of the Amendment Act where an accused person was facing non-electable offences when the Amendment Act came into force it would have said so; but significantly it did not do so.

It inevitably follows from these conclusions that the new section 220 became applicable to the Appellant when the Amendment Act came into force on 13 October 2003. In his case it had a retrospective effect. Plainly the new section 220 is a procedural provision. It prescribes the manner in which the trial of a past offence may be conducted. It is unquestionably, in our view, a provision which is an exception to the common law rule that a statute ought not be given a retrospective effect, as stated by the High Court of Australia in Rodway (supra).

And for completeness, we reject Mr Shankar’s submission on the Chief Justice’s Direction. With respect that Direction did not correctly set out the effect of the Amendment Act as we have construed it. That Act did not apply only to criminal charges filed after 13 October 2003. Now the prosecutor has the right to apply for a transfer from the Magistrates Court to the High Court “before the calling of evidence at the trial” in the Magistrates Court in the case of non-electable offences whenever the charge was filed and in the case of electable offences if the charge was filed after 13 October 2003.

We find it unnecessary to consider and determine Mr Shankar’s submission that upon the Appellant pleading not guilty to the charges the trial (in the Magistrates Court) had commenced as clearly, the prosecution’s application was made “before the calling of evidence” at a trial in the Magistrates Court.

Having reached these conclusions we find that Shameem J. was correct when she determined that the prosecutor was entitled (after 13 October 2003) to make an application for a transfer of the appellant’s case to the High Court as the offences he was charged with are non-electable.

Result

For the reasons given the appeal is dismissed. We affirm the order of the Magistrate transferring the proceedings against the appellant to the High Court.

Ward, P
Gallen, JA
Penlington, JA

Solicitors:

Messrs. M. Raza and Associates, Suva for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent