Prasad v The State [1991] FJHC 16; HAA0001.1991 (14 February 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 1 OF 1991

Between:

VINOD PRASAD
s/o Ram Prasad
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. J. Prakash for the Respondent

JUDGMENT

The appellant pleaded guilty in the Suva Magistrate Court to 3 counts of Forgery, Uttering a Forged Document and Attempting to Obtain Money on a Forged Document. Upon his conviction he was sentenced to concurrent terms of 12 months imprisonment on each count.

He now appeals against both his conviction and the sentence on several non-specific grounds which he later detailed as a denial of his right of election and a harsh and excessive sentence. He asks for a suspended sentence.

As for the appeal against conviction the trial record reveals that the appellant pleaded guilty in the lower court and in the absence of good and sufficient reasons to hold that the appellant's pleas were equivocal, this court is bound by the provisions of Section 309(1) of the Criminal Procedure Code which states:

"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such a plea by a magistrate's court, except as to the extent or legality of the sentence."

At the hearing of the appeal, the appellant submitted that he was not given an opportunity to elect the court he wished to be tried in before his pleas were taken.

In this regard the trial record confirms (by its absence) the appellant's claim. If he does have a "right of election" then the failure of the trial court to afford him that "right" renders the entire proceedings a nullity.

The answer to this problem is clearly provided by the Electable Offences Decree No. 25 of 1988 which had the effect of denying to all persons charged with Penal Code offences otherwise triable in the Magistrate Court, a right of election "......... unless the offence with which he has been charged is an electable offence".

The Schedule to the decree then prescribes electable offences of which Forgery: contrary to Section 335(1) & (2) are listed.

Clearly the appellant was charged with an electable offence in Count 1 of the charge and he was entitled to elect the court in which he wished to be tried for that offence.

He was denied that entitlement in respect of the Forgery Count and the proceedings in that respect must be considered to be fundamentally flawed.

However the offence charged in Count 3 namely, Attempting to Obtain Money on a Forged Document: Contrary to Section 345 and 381 of the Penal Code is not listed as an electable offence and although the appellant's plea of guilty may be theoretically sustained in respect of that count, the Particulars of Offence are so unsatisfactory and incomplete as to render the appellant's plea of guilty thereto equivocal.

The appellant's convictions on all 3 Counts are accordingly quashed and the sentences imposed set aside.

In these circumstances learned State Counsel submits that the proper order of the Court would be to make an order for a retrial however having carefully considered the facts outlined by the prosecution, this Court is not at all satisfied that the charges presently laid against the appellant correctly or properly reflect the nature of the Forgery he is alleged to have committed. Accordingly I make no order for retrial.

(D.V. Fatiaki)
JUDGE

At Suva,
14th February, 1991.