Pranjivan v The State [1997] FJHC 165; Haa0097j.97s (3 November 1997)

Fiji Islands - Pranjivan v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA097 OF 1997

BETWEEN:

MOJITO PRANJIVAN
Appellant

and:

THE STATE
Respondent

Appellant's presence dispensed with
Mr K. Wilkinson forRespondent

Date of Hearing: 28 October 1997
Delivery of Judgment: 3 November 1997

JUDGMENT

On 13 May 1997 the Appellant was arrested and charged in Rotuma as follows:-

“FIRST COUNT

Statement of Offence (a)

IN CHARGE OF A MOTOR VEHICLE WHEN UNDER THE
INFLUENCE OF DRINKS OR DRUGS:
Contrary to section 39 of the Traffic Act 176.

Particulars of Offence (b)

MOJITO PRANJIVAN on the 13th day of May 1997 at Ahau Rotuma in the Eastern Division was in charge of a motor vehicle on Rotuma Coastal Road when under the influence of drinks or drugs to such an extent so as to be incapable of having proper control of the said motor vehicle.

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to section 247(a) of the Penal Code Act 17.

Particulars of Offence

MOJITO PRANJIVAN on the 13th day of May 1997 at Ahau Rotuma in the Eastern Division prevented PC 209 PAULINO from the lawful apprehension of himself.

THIRD COUNT

Statement of Offence

DRUNK AND DISORDERLY: Contrary to section 4 of the Minor Offences Act 18

Particulars of Offence

MOJITO PRANJIVAN on the 13th day of May 1997 at Ahau Rotuma in the Eastern Division was drunk and disorderly in a public place namely Rotuma Coastal Road.”

On 14 May 1997 he appeared before the Rotuma Magistrates' Court (strictly speaking the District Officer's Court (see Sections 5 and 6 of the Rotuma Act Cap. 122)) presided over by the Rotuma District Officer. By virtue of Section 6 of the Rotuma Act the District Officer at Rotuma is an ex-officio Magistrate with second class jurisdiction.

The Appellant pleaded guilty to all 3 counts. The facts as outlined by the police were admitted by him. The case was adjourned to 18 July 1997 to enable the Appellant to make submissions in mitigation. On the adjourned date the Appellant did not make any plea in mitigation. He was thereafter found guilty on all 3 counts and the Magistrate passed sentence on him as follows -

“Sentence

Fine $50. on first count and Driving Licence to be suspended for 6 months, $50. on second count in default 1 month imprisonment, $50. on third count sentence to be concurrent with second count. Licence to be produced for endorsement.”

On 24 July 1997 the Appellant sent the following letter, addressed to the Resident Magistrate, District Officer's Court, Rotuma -

“Sir

I wish to appeal against my sentence that was imposed on me by the Rotuma Magistrates Court on 18.7.97.

I pleaded guilty to a charge of In charge Of A Motor vehicle Under the Influence of Drinks or Drugs: Contrary to section 39 of the Traffic Act 176 and was fined $50.00 and my driving licence was suspended for six months.

I am appealing on the grounds that the sentence imposed on me is very harsh. I have a farm and a piggery and operate a retail shop at Motusa. I am also repaying a loan with the National Bank of Fiji. Because of the suspension of my licence last week I have found tremendous inconvenience in keeping my business and farm in operation. There are only a few group two licence holders in Rotuma and I find it very hard to get a driver to drive my light truck during business hours. My business and farm needs the use of my truck. There are only two shops at Motusa and because of the distance from the wharf and the lack of transport, my vehicle is needed to cart supplies and goods coming in from Suva.

The suspension of my licence not only has affected my business and my family's livelihood but has also affected the community. My vehicle was used on numerous occasions without charge to convey sick villagers to the hospital, a service which tradition and culture holds me duty bound.

I have greatly learned my mistake and I am confident that it would be the first and last time that I will appear in court for an offence.

Because it was the first time I was charged for an offence and to appear in court, I was ignorant of court procedures and I did not say anything in mitigation. It was only after the sentence is passed and after experiencing the difficulties I have stated earlier that I was prompted to write and seek your Worships assistance.

I am appealing if Your Honour pleases, to allow me to drive my vehicle during business hours from 6.00a.m. to 6.00p.m.

I believe that the sentence imposed by the court is justifiable but on humanitarian grounds I appeal to Your Honour for your kind decision.-----”

The District Officer, Rotuma referred the above letter to the Chief Registrar who placed the matter before me. I decided to treat the letter as a Petition of Appeal to the High Court in respect of the order of disqualification only as a question of legality appeared to have been involved.

In due course the Chief Registrar on my instructions wrote to the Appellant as follows -

“30/9/97

Mr. Mojito Pranjivan
C/o Rotuma District Office
ROTUMA

Dear Sir,

Criminal Appeal No. HAA0097 of 1997
(Rotuma Council Case No. 32/97)

I am directed by the Acting Chief Justice to advise you that your letter dated 24 July 1997 addressed to the Rotuma District Officers Court has been treated as a Petition of Appeal. This course has been taken because you are a layman, you were not represented at your trial and the fact that you are resident in Rotuma an island so far away from the Suva High Court.

It is noted that you are only appealing against the order of 4 months disqualification imposed on you on the 1^st Count.

Your letter of appeal also outlined your arguments why the disqualification should not have been imposed. A copy of the trial record including your letter was submitted to the Director of Public Prosecutions and she has made her submissions.

I now enclose herewith a copy of the Record plus a copy of the DPP's submissions.

You are hereby given notice that your appeal will be heard in the Suva High Court on Tuesday, 28 October at 9.30 am.

You may attend in person to argue your appeal or you may appear with a counsel. Or a counsel may appear on your behalf without your presence. If because of the distance and the cost involved you find that you cannot appear in person or engage a counsel to represent you, you may ask that your presence be excused. If you do so the Acting Chief Justice will be disposed to dispense with your presence. In any case you are requested to send to this Court by fax or airmail any argument you wish to present to the Court in favour of your appeal. Your submissions should reach me not later than 21 October 1997. If you engage a counsel he could file them in Suva High Court on or before 21 October 1997 and serve a copy on the DPP's Office.

I also wish to inform you that the Acting Chief Justice in the exercise of his revisional powers is disposed to set aside the conviction and sentence imposed on you in respect of the 2^nd Count because the charge was beyond the powers of the Rotuma District Officers 2^nd Class magisterial jurisdiction. Further the charge as laid was defective and is not known to law. No comments are sought from you as regards the 2^nd Count because the proposed action is entirely in your favour.

As regards the 3^rd Count the Acting Chief Justice is again minded, in exercise of his revisional powers, to set aside the Magistrate's order that the $50.00 fine he imposed on you run concurrently with the fine imposed on the 2^nd Count.

In the Acting Chief Justice's view the trial Magistrate had no power to order that the fine should run concurrently with any other fine that he imposed. (See Scott J's judgment in State v. Rajesh Prasad Maharaj attached). You (or your counsel if any) are entitled to show cause why this course should not be taken by the High Court. You may do so in person, through your counsel or by letter.

As we do not have your proper address I am sending this letter together with the enclosures to the District Officer Rotuma for service on you.

Yours faithfully

M.C. Rai
Chief Registrar

(i) c.c. ( I) DPP (letter only)
(ii) District Officer Rotuma (letter only)

Enclosures i) Rotuma District Officer Court Record
ii) DPP's Submissions
iii) Copy of Scott J's decision”

The Appellant did not appear before me personally or by Counsel on 28 October 1997, i.e. the date fixed for hearing of the appeal. However he did send a fax to the Chief Registrar explaining his inability to attend in person or through Counsel. He asked that “if High Court could reduce my charges and revalid my licences for driving----.” I dispensed with his appearance in person or by Counsel.

re Count 1

Section 39(2) of the Traffic Act provides that -

“A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise, and without prejudice to the power of the court to order a longer period of disqualification, be disqualified for a period of 12 months from the date of conviction from holding or obtaining a driving licence.”

The following written submissions of the Director of Public Prosecutions are both apposite and helpful -

‘1. These submissions are in respect of the law on disqualification, and on the giving of special reasons. In this case the Appellant was fined $50 and disqualified for 6 months on a charge of Being in Charge of a Motor Vehicle when under the Influence of Drinks or Drugs contrary to section 39 of the Traffic Act, Cap. 176. He was given a chance to mitigate but remained silent. He was not told that his licence was to be suspended unless there were special reasons not to so suspend.

2. It is well-established law that a sentence of disqualification should not be imposed unless the accused has first been given the opportunity to provide special reasons not to impose the disqualification. In Maraia Maivusaroko -v- The State Criminal Appeal No. HAA0020 of 1995, the High Court pointed out that while the obligation to raise the issue of special reasons and to give sworn evidence, is on the defendant - “the court must take care to see that an unrepresented defendant is not placed at any disadvantage. As the Court of Appeal pointed out in Michael Iro -v- R (Criminal Appeal No. 11 of 1966) “there is a duty cast on the court to exercise particular vigilance in the interests of an unrepresented defendant. For this reason the provision for mandatory disqualification under the statute should be explained to the defendant who should be asked whether there are any special reasons for it not to be imposed. The nature of special reasons should also be explained. If the defendant indicates that there are special reasons, he or she should be put on oath to verify these reasons.”

In Anare Maiwalu -v- State Criminal Appeal No. 0001 of 1995 Pathik J pointed out that:

“The special ‘reasons‘ must be special to the offence and not to the offender (vide Kandaswami -v- R Crim. App. No. 68/64 following R -v- Lundt-Smith (1964) 2 WLR 1063 Whittal -v- Kirby (1946) 2 AER 592)"

In Maiwalu the appeal court heard the appellant on oath and decided that there were special reasons not to disqualify the defendant, the reasons being that the appellant had driven a tractor to help his father on a farm 200 chains away in Seaqaqa without being aware that there was no third party insurance covering the tractor. It was his father who usually drove the tractor.

3. In DPP -v- Jone Osali Criminal Appeal No. 39 of 1978, the High Court restated the rule that special reasons must be special to the facts of the particular case. It said:

“It is in other words a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, but directly connected with the commission of the offence and one which a court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender, as distinguished from the offence, is not a “special reason” within the subsection. No consideration of financial hardship, or of the offender being before the court for the first time, can be regarded as special reason (Whittal -v- Kirby (1946) 2 All ER 552 cf. R-v- Gokul Singh Suva Cr. App. 19/75).”

In the above-named case, counsel had submitted that the respondent was a truck driver by occupation and could not earn a living in any other way. This was held to be irrelevant, and incapable of amounting to a special reason.

In Whittal v- Kirby (cited above) it was held that no consideration of financial hardship, or of the offender being before the court for the first time, or that he had driven for a number of years without complaint, could be regarded as special reasons.

4. In this case, it is submitted that the issues raised by the appellant do not amount to special reasons, but that he should nevertheless be given the opportunity to give evidence on oath as to special reasons.

This can be done in the Rotuma Court on the directions of the High Court under section 320 of the Criminal Procedure Code.

5. It should be noted that the legislation does not allow “partial” disqualification. In DPP -v- Sukendra Singh Criminal Appeal No. 76 of 1992 Kepa J found that a sentence of disqualification from driving for 18 months except between 6am to 7pm from Monday to Saturday for Group 2 vehicles only, was wrong in law. He said that: “The provisions in respect of which the respondent was convicted did not confer any power in the Court below to make any condition to its order of disqualification. The disqualification is mandatory and any attempt by the Court below to do otherwise is ultra vires.”

6. The State submits that these submissions should be taken into account for the purpose of considering appeal against the sentence of disqualification.’

In this case the Magistrate did not make any finding that there were special reasons for imposing a disqualification of less than 12 months. Indeed he did not specifically draw the attention of the Appellant to the fact that unless special reasons were shown the Court would be obliged to impose a minimum of 12 months disqualification. The Appellant was a lay person and was unrepresented. He ought to have been given an opportunity to show cause on oath why a 12-month disqualification should not be imposed.

I agree that any reason shown must be special to the offence and not special to the offender. I also agree that the circumstances outlined by the Appellant in his letter dated 30 September 1997 do not constitute special reasons. The trial Magistrate had only 3 courses open to him as regards disqualification - order disqualification for 12 months, make no order of disqualification or order a disqualification for a period longer than 12 months.

In the circumstances the order of 6 months disqualification is set aside; I order that the matter be remitted to the District Officer's Court, Rotuma and direct the District Officer to give the Appellant an opportunity to give evidence on oath to show that there are special reasons why he ought not be disqualified from driving for 12 months. I further order the District Officer, Rotuma to fix a date of hearing within 14 days of receipt of this judgment and serve a notice on the Appellant to that effect. If the Appellant does not appear on the hearing date the District Officer should note that fact and order disqualification for 12 months effective from 18 July 1997. If the Appellant attends and gives or adduces evidence and the District Officer is satisfied that there are special reasons, then he should make a finding to that effect and rule that there is to be no disqualification. If he is not so satisfied, then he is to say so in writing and impose a disqualification for 12 months effective from the date of conviction, i.e. 18 July 1997. The licence, which is still in the possession of the Magistrates' Court, is then to be endorsed accordingly. I agree with Mr Wilkinson that prima facie this is not a case in which consideration should be given to imposing a longer than 12 months' disqualification in the absence of special reasons.

I think I should add here that although there is no statutory requirement that an accused person has to give or adduce evidence on oath to show special reasons he nevertheless carries the evidentiary burden which can only be satisfactorily discharged by evidence given on oath. However, the position would be otherwise if special reasons are evident from the prosecution's case itself. This is obviously not the situation here.

re Count 2

All charges under Section 247 of the Penal Code Cap. 17 can be dealt with only by a Resident Magistrate (see First Schedule to Criminal Procedure Code Cap. 21). The maximum punishment prescribed is 5 years imprisonment.

The second count was clearly beyond the jurisdiction of the Rotuma District Officer. In any case particulars of offence as framed are not known to law. If the police intended to charge the Appellant with resisting a police officer in the due execution of his duty then they ought to have proceeded under Section 247(b) before the appropriate Court. The conviction and sentence cannot stand. By virtue of the revisional power vested in the High Court under Section 325 of the Criminal Procedure Code I set aside the conviction and the sentence and quash them as a nullity. The Director of Public Prosecutions has advised that she does not intend to look into the possibility of recharging the Appellant.

re Count 3

In my view the trial Magistrate had no power to order the fine imposed on Count 3 to run concurrently with the fine imposed on Count 2.

In Commissioner of Inland Revenue v Rajesh Prasad Maharaj, Criminal Appeal No. HAA 16 of 1997 Scott J. held, rightly in my view, that fines cannot be made to be “served” concurrently. Therefore by virtue of the revisional power vested in me I quash the Magistrate's order that the fine of $50.00 on the third count to be “concurrent with” the fine on the second count. In lieu thereof the Appellant is ordered to pay a fine of $25.00 on the 3^rd Count. If the Appellant has already paid $50.00 fine imposed on the 2^nd Count then $25.00 out of that sum should be applied in satisfaction of the fine now imposed on the Count 3 and the balance refunded to the Appellant.

re Requirements of Section 155 of the C.P.C.

The attention of all Magistrates is drawn to the provisions of Section 155 of the Criminal Procedure Code. One of the requirements of this Section is that the presiding officer shall date and sign his decision in open court at the time of pronouncing it. In this case the trial Magistrate overlooked to comply with this requirement.

re Reference to legislations

Magistrates should also check that the charge is stated correctly in terms of the legislation under which it is brought. In the present case the first count charged an offence against the Traffic Act; that Act was referred to as “the Traffic Act 176”. The reference should have been to “the Traffic Act Cap. 176”. Similarly in the second and third counts the references should have been to “the Penal Code Cap. 17” and “the Minor Offences Act Cap. 18”.

I have drawn attention to certain lapses and omissions in this case in a constructive spirit and not with a view to public chastisement. I am also mindful that to decide what constitutes “special reasons” and what does not, can be a difficult task at the best of times.

A copy of this judgment is to be supplied to the Appellant by registered airmail forthwith.

Sir Moti Tikaram
Acting Chief Justice

Haa0097j.97s