Koroi v The State [1995] FJHC 116; Haa0035j.94s (14 July 1995)

IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0035 OF 1994

BETWEEN:

AJIPOTE KOROI
APPELLANT

AND:

STATE
RESPONDENT

Mr D. Naidu for Appellant
Mr D. McNaughtan for Respondent

JUDGMENT

When the Appellant, in this case, lodged his appeal, it was against both conviction and sentence. But when Counsel argued the appeal he confined himself to appeal against conviction and left appeal against sentence untouched.

The grounds of appeal were drawn up by appellant in person as at that time he did not have counsel to represent him.

Appellant lodged several grounds of appeal which are both repetitive and overlapping but could be summarised to three main grounds namely:-

(1) That the learned Magistrate erred in law in denying appellant the right to call witnesses;

(2) That the Magistrate erred in law and in fact in accepting the evidence adduced by the prosecution, which did not support the appellant's conviction;

and

(3) That the consecutive sentence of 4½ years is harsh and excessive in the circumstances.

The appellant was charged with two counts of Robbery with Violence: contrary to Section 293 (1) (b) of the Penal Code, Cap. 17; and one count of Housebreaking Entering and Larceny: contrary to Section 300 of the Penal Code, Cap. 17.

The facts of the case are that on the 31st day of December, 1993 at Lautoka the Appellant with others robbed Dhyreen Begum d/o Mohammed Hanif of cash $100.00 assorted jewelleries valued at $2,680.00, a pair of eye glasses valued at $300.00, a ladies wrist watch valued at $150.00 and 2 cameras valued at $2,000.00, all to the total value of $5,230.00.

Appellant with others also robbed Waheda Hanif d/o Mohammed Hanif, of assorted jewelleries valued at $2,050.00, a wrist watch valued $100.00, a pair of ladies shoes valued at $90.00 all to the total value of $2,240.00, and immediately before both robberies used personal violence on both complainants.

I will now deal with the first ground of appeal and will enumerate the chronology of events leading to the trial, as I believe that this is a very important and substantial ground of appeal to the appellant. I believe the best way to meet my objective above is to include in this judgment the court record up till the first hearing date i.e. 11/2/94.

LAUTOKA CRIMINAL CASE NO. MAC 0080/94L

STATE vs AJIPOTE KOROI

20/1/94

Prosecution : P Narayan

Accused : Present/Patel/Vuataki

Prosecution

Oppose bail - offence serious - broad daylight - 2 teenager girls - property not recovered - 2 accomplice at large. Accused is known. May interfere with prosecution witnesses - Accused admitted in interview. Some property recovered in his possession.

Patel

No basis that he will interfere with witnesses. Accused says he has not confessed.

Court

How long will prosecution take to have the case ready for hearing.

Prosecution

2 weeks

Court

Bail refused.

3/2/94 Hearing

Remanded in custody.

(SGD) S Prasad
Resident Magistrate

3/2/94

Prosecution : ASP Goundar

Accused : Present/Patel - says only for today.

Prosecution

Down for (hearing) today.

Ready to proceed.

Court Later

I have explained to the learned counsel for the accused and to the learned prosecutor in my chambers about certain circumstances under which I do not think it correct for me to hear this case. The case has been fixed for (Hearing) by Mr Prasad today. But he is on leave today till 9th February and I understand thereafter he will be on long leave.

Prosecution

I ask for further remand of the accused. Complainant in the first count is due to leave for Overseas shortly. Ask for early (hearing) date.

Patel

I ask for bail. Accused is in remand since 6/1/94. Still in remand. Accused is entitled to this liberty. No basis for further remand. Accused is presumed to be innocent. Lack of magistrate should not mar the justice. I urge for bail - conditional bail.

Prosecution

One of my witnesses is receiving anonymous telephone calls threatening her not to give evidence.

Court

I have considered the submissions made by both sides. Having regard to the submissions made by the prosecution before Mr Prasad and me today and also having regard to the seriousness of the charge I am of the view that bail cannot be granted to the accused today.

In view of my difficulty to take up the case for hearing today I shall get in touch with Chief Magistrate to explore the possibility of getting another Magistrate to hear this case. In the meantime accused is remanded in custody for mention only on 11/2/94.

(SGD) J Ilangasinghe
Resident Magistrate

It can be seen from the record that when the case was first called on 20/1/94, no plea or election was taken but the Magistrate immediately asked P Narayan for Prosecution how long the trial would take, to which Narayan replied it would take 2 weeks. Bailed was refused and the case adjourned to 3/2/94 for hearing.

On 3/2/94 the case was called before another Magistrate and was adjourned further to 11/2/94 for mention only, and appellant remanded in custody.

On 11/2/94 the case which was to be called for mention only, was called before, this time, a third Magistrate; when both election and plea were taken. The appellant elected to be tried in the Magistrates' court and pleaded not guilty to all three charges.

I pause here to make certain observations. I cannot understand why the first Magistrate did not take appellant's plea, if he elected to be tried in the Magistrates court when he first appeared before him. Why should he asked prosecution for the length of time that it would take them to present their case if he did not know whether the appellant would plead Not Guilty or Guilty. It would have been a waste of resources if on the date of hearing the appellant pleaded guilty, while all the prosecution witnesses were present.

This practice must be discouraged and Magistrate must take the plea of accused persons when they first appear before them, unless for some good reasons such plea cannot be taken at that first appearance. The taking of plea on the hearing date, is in my view, not a good practice and must also be discouraged.

On 11/2/94 the appellant's case was not set down for hearing but only for mention. However, the trial Magistrate instead of adjourning the case further, either for hearing or otherwise proceeded to hear evidence.

This, in my view, is most unfair to the appellant, who was unrepresented, as he, in reality, did not come prepared for the hearing of his case. I have no doubt that if he was represented, his Counsel would have protested very strongly and would have sought a later hearing date.

While I appreciate the shortage of Magistrates in Lautoka, and the fact that Magistrates work very hard I cannot however, overlook the fact that fair procedures practised in court cases must not be compromised.

On the 11/2/94 the case was adjourned further to 25/2/94 for further hearing.

On 25/2/94 the trial Magistrate had other commitments and case was adjourned by another Magistrate to 15/3/94 for further hearing by the trial Magistrate. On 15/3/94 after hearing evidence of some witnesses, Magistrate adjourned case to 28/3/94 for continuation.

On 28/3/94 the Prosecution closed its case and the appellant gave his evidence on oath. At the end of his evidence he asked the Court for an adjournment to enable him to call his own witnesses. Appellant said that they rang one Marica, presumably a court official, who told him to give the names of his witnesses to the Court. The Magistrate after listening to the appellant's application refused to grant an adjournment.

I find it rather unfortunate for the Magistrate to say

"The Court shall not adjourn this case only for the three witnesses for the accused."

The Appellant all along had been in custody and it is a known fact that it is quite a difficult task to arrange for witnesses or legal representation from prison. While I appreciate that Magistrates are always busy, I believe an adjournment granted to the appellant to enable him to arrange for his witnesses to come to court, would not interfere so much with the general flow of this case.

Since appellant was unrepresented I would have expected the court to show him some sympathy and grant him an adjournment.

In Maciu Gonevou v. State Cr. App. No. 12 of 1992 page 12, the Court of Appeal had this to say:

"It is, however, traditional practice for the judge in cases where the accused is unrepresented to take special pains to ensure that he is informed of special provisions, procedures and legal technicalities which affect him and to assist him to understand the courses open to him."

In R v. West 1960, NZLR 555 at page 562 Gresson.P, said: "---- the principle which is fundamental and which admits of no departure therefrom ----- namely that every accused person must have the fullest opportunity of putting forward his defence and there is, too, the supplementary principle that it is important in the conduct of judicial proceedings not only that what is done shall in fact be perfectly fair but that it should bear the appearance of fairness."

In Superliquorman Hotels (Napier) Ltd v. Napier City Council (1948) INZLR 58 C/A at page 58, Woodhouse. P, had this to say:

"When exercising the discretion whether or not to grant an adjournment a Judge must balance a accused's right to be defended against the even flow of work in a busy court. But a person charged with an offence must be given every fair opportunity of presenting his case ------".

It is clear, in my view, that the authorities cited thus far are quite persuasive, and in all the circumstances the adjournment sought by appellant should not have been refused.

The refusal of a court to exercise its discretion to allow an adjournment is an error of law that could vitiate a trial only when such refusal amounted to a denial of justice (See Dick v. Pillar (1943)) 1 AER 627.

Following the chronologies of events leading to the trial I am satisfied that the trial Magistrate did not exercise his discretion properly or judiciously when refusing the appellant an adjournment. As it stands the appellant has not fully presented his defence. In my view the appellant ought to be given an adjournment, at least. The number of adjournments made by the court was not due to any request by, or difficulties to the appellant but the court's own difficulties. The sad thing about this case is that adjournments were granted when Prosecution asked for it, but appellant was refused Bail on all his applications, and when he made his only one application for adjournment to enable him to call his witnesses it was refused as well.

There is no doubt in this case that there is an air of unfairness in existence against accused, which amounts to a denial of justice. Clearly the failure to grant an adjournment in favour of the appellant is an error of law which amounts, in my view, to a denial of justice.

For reasons discussed above, I hold that appellant had not been given a fair trial as he has yet to present his defence.

I therefore allow his appeal on this ground and order a new trial before another Magistrate.

Since I have allowed this appeal on ground (1) and ordered a new trial, I will not deal with the remaining two grounds, for to do so, would be superfluous in my view.

S W Kepa
JUDGE

14th July, 1995

HAA0035J.94S