State v Khan [1997] FJHC 25; HAJ0010.1997b (20 February 1997)

Fiji Islands - The State v Khan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

REVISIONAL JURISDICTION

REVIEW NO. 1 OF 1997

IN THE MATTER of the Criminal Procedure Code

AND IN THE MATTER of Traffic Case No. 2785 of 1996
before Labasa Magistrates Court

BETWEEN:

STATESTATE
Complainant

AND:

MOHAMMED RAFIQ KHAN
s/o Asmat Dayal
Respondent

Ms. Laisa Laveti for the State

ORDER ON REVISION

The learned Magistrate, Labasa had on 7 January 1997 without taking a plea convicted and sentenced the accused on a charge of driving a motor vehicle on Bulileka Road at F.S.C. on 12 September 1996 when the Third Party risk in respect of the said vehicle was not in force as complies with the provisions of Motor Vehicles Third Party Insurance Act Cap. 177.

The accused was fined $35 in default 35 days; and without being asked to give 'special reasons' why he should not be disqualified, he was also disqualified from obtaining or holding a driving licence for a period of one year. He was given one month's time to pay.

I am now asked to revise the said Order.

The circumstances surrounding the conviction were that on 12 September 1996 the accused was given two Notices to Attend Court (NAC). The First Count (NAC) was for causing greater number of persons to be carried in goods vehicle contrary to Regulation 55 and 125 of Traffic Regulations Cap. 176 and in the second count (NAC) he was charged as already stated hereabove.

He was properly dealt with on the first Count on 19 November 1996. It is the second count which has become the subject of revision.

As appears from the record, Mr. Sadiq who appeared for the accused on 8 January 1997 pointed out to the learned Magistrate that the accused had originally pleaded guilty in writing on the N.A.Cs on both counts but when he appeared in Court on 7 January 1997 to be dealt with on Count 2 he was convicted, sentenced and disqualified without a plea being taken. Mr. Sadiq asked the learned Magistrate that this matter be put before the High Court for review. Hence this Revision.

Ms. Laisa Laveti for the State conceded that the charge on Count 2 should have been put to the accused and he should have been explained the consequences if found guilty as provided for in the section under which the accused was charged. She said that the accused has not been dealt with in accordance with the law.

I agree entirely with Ms. Laveti.

It is obvious that the proceedings in relation to Count 2 were a nullity.

To charge the accused under section 4 of the Motor Vehicles Third Party Insurance Act Cap. 177, Notice to Attend Court (being CPC Form No. 9) should not have been used as the NAC procedure is not available for an offence under the said section because of the penalty provided under the section which is a fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment and also mandatory disqualification for 12 months unless there are 'special reasons' not to disqualify. The C.P.C Form No. 6 would have been the proper form to use in this case. For an offence of this nature where mandatory disqualification is involved the personal attendance of the accused is required.

Section 80 of the Criminal Procedure Code, under the caption 'Notice to attend court' in section 80(4), makes it clear that the NAC procedure "shall apply to all offences punishable by fine or by imprisonment with or without fine, for a term not exceeding 3 months ..." Therefore the "Notice to Attend" procedure was not available for Count 2.

In this case not only was the wrong form to compel the attendance of an accused used, but when the accused did appear the charge should have been read to the accused and he should have been asked to plead to the charge; also because he was unrepresented the learned Magistrate ought to have advised him that he was risking losing his driving licence. All this was not done. Also before sentencing he should have been put on oath to show 'special reasons' as to why he should not be disqualified for the mandatory period of 12 months. In THE DIRECTOR OF PUBLIC PROSECUTIONS and MOSESE KOLINAITINI (Crim App. 73/80) TUIVAGA C.J. said:

"... In my opinion in failing to receive evidence on oath on the matter the Court below acted without jurisdiction in purporting to make an Order of disqualification against respondent for a period of less than twelve months, namely in this case three months."

A similar situation as in this case arose in THE DIRECTOR OF PUBLIC PROSECUTIONS v MOHAMMED SHAMEEM s/o Mohammed Munif (Crim. App. 33/78) where the Fiji Court of Appeal upheld the decision of the learned Judge that the proceedings in the Magistrates Court were a nullity.

For these reasons, in the outcome, I find that the procedure adopted by the prosecution was not available for this particular offence hence the proceedings before the learned Magistrate were a nullity.

Therefore the order imposing the fine and disqualification on Count 2 are quashed. The fine if paid is to be refunded to the accused.

D. Pathik
Judge

At Suva
20 February 1997

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