Chand v The State [2002] FJHC 174; HAA0076J.2002S (3 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0076 OF 2002S

Between:

RAMESH CHAND
s/o Mahesh Prasad
Appellant

And:

THE STATE
Respondent

Hearing: 27th September 2002
Judgment: 3rd October 2002

Counsel: Mr A.K. Singh for Appellant
Mr V. Vosarogo for State

JUDGMENT

The Appellant, on the 9^th of August 1999, was charged with the following offences:

FIRST COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 9^th day of March 1999 and 10^th day of April 1999 at Suva in the Central Division, with intent to defraud, obtained from Rajeshwar Prasad s/o Sita Prasad $23,309.50 in monies and 150 litres of Premix fuel valued at $139.50 by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

SECOND COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 12^th day of August 1998 and 22^nd day of October 1998 at Suva in the Central Division with intent to defraud, obtained from Janan Prasad s/o Hari Prasad $8,000 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

THIRD COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad sometimes in August 1998 at Suva in the Central Division with intent to defraud, obtained from Vijay Sen s/o Dwarka Prasad $4,000.00 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

FOURTH COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 4^th day of September 1998 and 7^th day of November 1998 at Suva in the Central Division with intent to defraud, obtained from Vidya Prasad s/o Ram Sumer $8,000.00 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

FIFTH COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 13^th August 1998 and 22^nd day of October 1998 at Suva in the Central Division with intent to defraud, obtained from Virend Prasad s/o Muneshwar $8,000 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

SIXTH COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 12^th day of August 1998 and 22^nd day of October 1998 at Suva in the Central Division, with intent to defraud, obtained from Mohini Singh d/o Ram Lal $17,000 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

SEVENTH COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad on the 21^st day of October 1998 at Suva in the Central Division, with intent to defraud, obtained from Sneh Lata Prasad d/o Pyare Lal $8,500 in monies by falsely pretending that he, the said Ramesh Chand s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

The case was called in the Suva Magistrate=s Court on the same day, and pleas were taken on the 23^rd of August 1999. The Appellant pleaded not guilty on all 7 counts. On 18^th October, he was represented by Mr G.P. Lala, and on 16^th November, by Mr G.P. Shankar. On all subsequent appearances, he was represented by counsel. On 28^th March 2000, a date set for the hearing of the case, counsel made an application for the learned Chief Magistrate to disqualify himself. A ruling was delivered on 25^th April 2000, refusing the application. Amended charges were filed, and pleas re-taken on 5^th June 2000. On the 22^nd of June 2000, the defence asked for the statement of a witness (Rajeshwar Prasad) in another case. In chambers, counsel agreed to resolve the question of disclosure amongst themselves.

The trial finally proceeded on 3^rd July 2000, 4^th July 2000 and 19^th July 2000. Counts 2 and 4 were withdrawn by the prosecution. A ruling on a Ano case to answer@ submission was made, after several adjournments, on 13^th October 2000. The defence case commenced on 20^th September 2001. The Appellant gave evidence. He adopted the contents of his interview to the police, and said he had not promised to obtain visas for any of the State witnesses, and had obtained loans from them. He said he was unable to repay the loans.

On 19^th October 2001, the learned Magistrate adjourned to 16^th November 2001 for judgment. It was not ready on that day, nor on the subsequent dates set, the 6^th of December, 31^st of January 2002 and the 28^th of February 2002. On all these days the Appellant appeared, represented by counsel.

On the 27^th of March 2002 (a date given for the delivery of judgment), the Appellant appeared without counsel. The court record reads as follows:

AProsecution: Vosarogo

Accused: Present

For Accused: Nil.

Accused: I want to voluntarily change my plea to guilty. I am not doing it under duress. No one is pressing me to change my plea.

Prosecution: Accused is represented by Mr G.P. Shankar. We will be asking for a consecutive sentence.

Accused: I want to change my plea. I maintain the position I told the Court this morning. I am voluntarily doing so, without my lawyer being here.

Charge read and explained and understood. Yes on all counts.

Plea: Count 1 - Guilty

Count 2 - Guilty

Count 5 - Guilty

Count 6 - Guilty

Court: 1. Adjourned 10.4.2002. Facts and sentencing.

2. Production Order endorsed.@

On 10^th April, the prosecution read out the facts. They were similar on each count. The prosecution said that in 1998 and 1999 the Appellant obtained sums of money from four complainants after informing each complainant that he was in a position to arrange migration visas for the complainant and his family to Australia. He also requested passports for each family member. The Appellant was not in a position to arrange for visas and the total sum of money alleged to be obtained was $50,560.00. No money was ever recovered, nor were the passports returned.

The Appellant said - AFacts admitted: I accept the summary of facts, subject to me admitting that the amount involved in Count 1 is $22,660.00 as opposed to $23,060. I didn=t receive any passport. That=s all.@

The prosecution accepted the admitted amount on Count 1 and also the fact that no passports had been obtained. The court accepted the Appellant=s version of the facts, saying that he had admitted the ingredients of the offence. He heard mitigation and sentenced on 11^th April 2002. The Appellant was sentenced to a total of 32 years imprisonment, to be served consecutive to his existing term of imprisonment.

The Appellant now appeals against conviction and sentence, on the following grounds:

(a) That the learned Chief Magistrate erred in law when he failed to have this matter determined within 12 months as required under section 202(7) Amended Criminal Procedure Code Cap. 17.

(b) That the learned Chief Magistrate erred in law when he allowed the case to be unnecessarily adjourned for the purpose of him writing his judgment and as such breached the Appellant=s right under the 1997 Fiji Constitution in not having the matter determined within reasonable time.

(c) That the learned Chief Magistrate erred in law when he failed to disqualify him after the Appellant objected him on the basic of his previous Criminal Matter and on the basic of his Judicial Review Application against the same Magistrate vide Suva High Court Action No. HBJ0040.2001.

(d) That the learned Chief Magistrate erred in law when he failed to consider that the Appellant=s plea was equivocal because of his frustration in not having the matter determined within reasonable time and disputing the facts.

(e) That the learned Chief Magistrate erred in law when he failed to enter a conviction against Appellant and as such the whole proceeding are nullity.

(f) That the learned Chief Magistrate erred in law and facts when he failed to enter a plea of not guilty after the Appellant disputed material facts.

(g) That the Chief Magistrate erred in law when he failed to conduct the Newton hearings to determine the disputed facts.

(h) That the learned Magistrate erred in law and facts when he failed considered the previous conviction that was either disputed by the Appellant or were wrong or erred or that were set aside by the High Court of Fiji.

(i) The learned Magistrate erred in law when he considered or that the learned prosecutor erred in law when he mentioned that the Appellant was a serving prisoner for similar offences.

(j) That the sentence passed by the Chief Magistrate was excessive and wrong in principle.

I deal with these grounds in turn.

Delay

The first two grounds of appeal are related, because they allege unfair and unreasonable delay in the proceedings.

Section 202(7) of the Criminal Procedure Code (as amended by Act No. 37 of 1998) provides as follows:

AA case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate, for good cause, which is to be stated in the record, considers such an adjournment to be required in the interests of justice.@

The reasons for each adjournment were noted in the record. Most of the adjournments were granted at the request of the defence. One long adjournment was ordered because the Magistrate was busy with coup-related cases, and a series of adjournments were granted because the ruling on a no case to answer submission, was not ready. Finally there was a delay of five months for the judgment before the Appellant pleaded guilty. In total, from the filing of the charge to the determination of the case, there was a period of almost two years in the conduct of the case.

In a criminal trial, such a delay is a matter of concern. Delay in the hearing of proceedings assists no one. Prosecution witnesses forget the details of their evidence, or migrate, or die. The accused person has to live with the case >hanging over his head.= He or she may find it difficult to find witnesses. The court may not recollect the demeanour of witnesses who gave evidence months previously. When a criminal hearing is delayed, there is a considerable risk of prejudice to the accused, of frustration of the public interest in bringing offenders to justice, and of mal-administration of justice. In cases of delay, a court must consider whether the accused=s right to a fair trial has been jeopardised by the lapse of time. If the delay renders the prosecution and continuation of the trial, an abuse of the process, the High Court may order a stay of proceedings (Connolly -v- DPP (1964) 48 Cr. App. R. 183) or may allow an appeal against conviction on the ground that the accused had failed to receive a fair trial.

The delay in this case can be attributed to the defence, and also to the learned Magistrate. The prosecution appears to have been invariably ready to proceed. However irrespective of who caused the delay, the real question is whether the Appellant was prejudiced. I do not think that he was. The prosecution called all its witnesses in July 2000. They were cross-examined by counsel. There was no answer given by any of them that suggested that there was a lapse of memory. The accused gave evidence in September 2001 and gave his answers with no suggestion that he had forgotten events. He did not call any witnesses. Up to the end of the defence case, there appears to have been no prejudice to the Appellant in the conduct of his case. Indeed documents purporting to be promissory notes and tax invoices were available and were tendered by the witnesses.

After the defence case closed, there was a considerable delay while the learned Magistrate prepared his judgment. Despite the heavy workload of the Magistrate=s Court, such a delay is quite unacceptable. It exposes the Magistrates to allegations that Constitutional rights have been breached, and it causes frustration amongst all parties involved in the litigation. In this case, it has led counsel for the Appellant to submit that the Appellant was so frustrated that he pleaded guilty in order to bring the case to an end.

In this case however, the delay after the case was heard and before the judgment was delivered, did not prejudice the Appellant in his defence. By April 2002, the defence case was over, and could not have been affected by the delay from October 2001 to April 2002.

For these reasons, the first two grounds of appeal fail.

Ground (c) is that the learned Magistrate erred in failing to disqualify himself. Unfortunately the motion, and affidavit relevant to the application, and the learned Magistrate=s ruling were not on the court record. The original Magistrate=s Court file had to be trawled through to find the necessary papers, and to provide them to counsel.

On a perusal of those papers, it appears that the grounds for the application for disqualification, were that in a previous case involving the Appellant, his previous convictions had been referred to in the judgment of the Court of Appeal, and had been placed by the State, in the course of proceedings, before the learned Magistrate. That case was referred to as Case No. 1945 of 1997. The previous convictions were referred to in the Court of Appeal decision in Ramesh Chand -v- The State Cr. App. No. 50, 51 & 52 of 1991.

In his ruling, the learned Magistrate correctly referred to the test for bias as decided in Amina Koya -v- State Crim. App. No. CAV0002.1997, as being whether a reasonable and informed person would consider there was a real danger of bias or that he would reasonably apprehend or suspect bias. He further referred to the decision of Grant C.J. in Reg -v- Resident Magistrate ex parte Taniela Veitata 23 [1977] FLR 172 which was that:

AI know of no authority which precludes any court from hearing several separate and distinct charges against the same accused arising on different occasions. Were courts to be limited to one hearing per accused then it might well be found that the judicial system would break down. Such a system would lead to inordinate delays and would result in delayed justice which in itself would be intolerable. This would be very apparent in those jurisdictions where there is only one magistrate sitting in isolation.

So far as the court knowing the accused=s antecedents is concerned there is nothing unusual or prejudicial to the accused in such being the case,. There is a wealth of cases, relating to the court=s being advised, when bail is opposed, as to the accused=s previous convictions.@

These remarks constitute a complete answer to this ground of appeal. It is dismissed.

The next ground of appeal was that the Appellant=s plea of guilty was not unequivocal. The sudden change of plea, after months of pre-trial preparation, evidence and submissions was certainly extraordinary. Further, and most significantly, the Appellant changed his plea on the one day he was not represented by counsel. Although he told the Magistrate that he was pleading freely and without the benefit of counsel being present, there is nothing on the record to suggest that the Appellant had dispensed with the services of his lawyer, or that the learned Magistrate made any attempt to find out where counsel was. Counsel for the Appellant (who was then appearing for the Appellant in the lower court) said frankly that if his client had told him of his intention to change his plea, he would have advised him not to do so, firstly because he had a good defence, and secondly because the trial was over bar the judgment.

The right to counsel is not, of course, an absolute right. It must be balanced against the right to a trial without delay, and the rights of the public to ensure that offenders are brought to justice without delay. The question is not whether the accused had counsel, but whether he/she was prejudiced by lack of counsel. In the case of a guilty plea, where the accused is unrepresented, the Magistrate/Judge has a special duty to ensure that the charge is understood, that the facts disclose all the ingredients of the offence, that the accused is not raising a possible defence, and that the plea of guilty is clear, unambiguous and unequivocal. (Michael Iro -v- Reg [1966] 12 FLR 104, Anania Nawaqa & Ors. -v- State Misc. Action No. HBM0014.2000L).

In this case, not only was the Appellant unrepresented when he suddenly changed his plea; when the facts were outlined, he disputed the amount of money he obtained from the complainant. In his evidence, in the course of trial, he had similarly disputed the amounts of money he had purportedly obtained. The learned Magistrate did not ask the Appellant if he understood that he was admitting obtaining the money by falsely pretending he could obtain visas, and if he understood that he was admitting that the money obtained was not a loan. After all, the Appellant, during the trial had maintained his defence that the monies obtained were loans. The disputing of the amount of money allegedly obtained, ought to have put the learned Magistrate on his guard against possible prejudice as a result of lack of representation. Further, he disputed receiving any passport. Again, that was consistent with his defence that the monies obtained were loans, and not obtained by a false promise to obtain visas.

In the circumstances I consider that the Appellant was prejudiced by lack of representation on the 27^th of March 2002. I further consider that the plea of guilty was not unequivocal and I quash it accordingly. It follows that the sentence must also be quashed. In the course of the hearing of this appeal, counsel for the Appellant submitted that there was no conviction formally entered. Although this is not strictly relevant because the conviction is quashed for other reasons, I note that a conviction was entered on the delivery of sentence. Finally, in respect of ground (g), this is in my view, not an appropriate case for a Newton hearing once the facts were disputed. The pleas should have been quashed, and the Magistrate should have proceeded to judgment.

Sentence

The sentence is quashed because the plea was invalid. However counsel raised valid arguments about the accuracy of the Appellant=s previous convictions record, which I hope State counsel noted. The sentencing process depends on accurate records of previous convictions. This means that the records must be regularly up-dated and all convictions set aside on appeal must be expunged from the record.

Result

The conviction and sentence are quashed on the ground that the Appellant was prejudiced by lack of legal representation, and his plea was equivocal. However, the appeal against conviction on the ground of unconscionable delay and bias is unsuccessful. It follows that the proceedings up to the change of plea, are valid. All that remains is the judgment of the learned Magistrate. I therefore order that the learned Magistrate proceed to judgment as expeditiously as possible. The conduct of these proceedings has encountered enough delay already.

The Appellant may apply for bail in the Magistrate=s Court forthwith.

Nazhat Shameem
JUDGE

At Suva
3^rd October 2002