Dutt v The State [1995] FJHC 130; Haa0031r.1995b (21 July 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0031 OF 1995

Between:

KISHORE DUTT
s/o Ram Dutt
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Ms. R. Shafiq for Respondent

REASONS FOR DECISION

On the 9th of May, 1995 the appellant was charged by way of a Notice to Attend Court ('NAC') with an offence of Driving a Motor Vehicle in Contravention of Third Party Risks: contrary to Section 4 of the Motor Vehicle (Third Party Insurance) Act (Cap. 177) to which he had entered a 'Written Plea of Guilty'.

On the 8th of June in his absence the trial magistrate convicted the appellant and sentenced him to pay a fine of $60.00 in default 2 months imprisonment. He was also disqualified from holding or obtaining a driver's licence for a period of 12 months.

The appellant now appeals against his conviction and sentence on several grounds which may be summarised as follows: That he had not been informed of the offence with which he was charged; that he had pleaded guilty on a misapprehension as to the offence charged and that he had been disqualified without being given the opportunity to be heard.

In expanding on his grounds of appeal at the hearing the appellant claimed that he was made to sign the 'NAC' without seeing or reading the charge. Furthermore at the relevant time there was a valid Third Party Policy in existence which, although he had it with him, was neither requested nor sighted by the booking officer.

The relevant Third Party Policy and Permit to Carry Excess Passengers were subsequently produced by the appellant at the hearing of the appeal and reveals the following - The policy was issued by the Queensland Insurance Co. on the 9th of January 1995 and was valid until 9th January 1996 and covered the use of he appellant's vehicle for the "carriage of upto and including ELEVEN passengers."

In the face of what appears to be a valid Third Party Policy the 'Particulars of Offence' provided in the 'NAC' were wholly insufficient "for giving reasonable information as to the offence charged" as required by Section 119 of the Criminal Procedure Code (Cap. 21).

Be that as it may, State Counsel without conceding the inadequacy of the 'particulars', quite properly and very fairly drew the Court's attention to the apparent irregularity in the procedure adopted in instituting the case i.e. by way of 'NAC', and stated she was unable to support the appellant's conviction and sentence.

In this regard Section 80(1) of the Criminal Procedure Code (Cap. 21) provides:

"... it shall be lawful for any police officer to institute proceedings by and to serve personally upon any person who is reasonably suspected of having committed an offence to which this section applies a notice in the prescribed form requiring such person to attend Court to answer to the charge stated thereon at such place and on such date and time ... as shown on the notice or ... to enter a written plea of guilty."

and Section 80(4) limits the availability of the procedure:

"... to all offences punishable by fine or imprisonment with or without a fine, for a term not exceeding 3 months or by disqualification from holding or obtaining a driving licence or by endorsement on a driving licence of particulars of a conviction or disqualification."

Quite plainly the legislature in providing a short and speedy procedure under Section 80(1) confined its use to what might be considered minor offences gauged according to a maximum term of imprisonment.

Section 4 however of the Motor Vehicle (Third Party Insurance) Act (Cap. 177) under which the appellant was charged, provides for "... a fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment ..." In addition, the section provides for a minimum disqualification period of 12 months unless the court for 'special reasons' thinks fit to order otherwise.

Clearly the offence with which the appellant was charged carried a maximum sentence of imprisonment far in excess of the limit prescribed in Section 80(4) and accordingly any prosecution of the offence could not lawfully be instituted by way of an 'NAC'.

In D.P.P. v Bissun Prasad 20 F.L.R. 23 Grant Ag C.J. in quashing the conviction and sentence in that case, where an 'NAC' was issued for an offence which carried a maximum sentence of imprisonment of 6 months, said at p.25:

"This is not a matter of defective service which may be remedied by the appearance of an accused but is a matter of a prosecution having been instituted by a procedure which was wholly inapplicable. Nor is it a matter of a defect or irregularity in a complaint, charge or notice to attend court which may be waived. It is a fundamental error in the institution of proceedings which goes to jurisdiction ... The Magistrate Court in the circumstances could not proceed upon the charge preferred by way of notice to attend court which was ultra vires the enabling Section."

Accordingly this Court was constrained to hold in this case that the proceedings instituted by way of 'NAC' in the Labasa Magistrate Court were a nullity, and the appellant's conviction was therefore quashed and the sentence including the disqualification set aside.

(D.V. Fatiaki)
JUDGE

At Labasa,
21st July, 1995.

HAA0031R.95B