Prasad v The State [2003] FJHC 140; HAA0031J.2003S (3 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0031 OF 2003S

Between:

RAJNESH RAJESHWAR PRASAD
Appellant

And:

THE STATE
Respondent

Counsel: Mr. A.K. Singh for Appellant
Ms. L. Chandra for State

Hearing: 19th September 2003
Judgment: 3rd October 2003

JUDGMENT

The Appellant appeals against a decision of the learned Magistrate to hold a preliminary inquiry in respect of a re-trial ordered by the Fiji Court of Appeal. The grounds of appeal are as follows:

“(a) That the learned trial Magistrate erred in law when he suggested to the State to make Application under section 220 of the Criminal Procedure Code, Cap. 21 to have the trial in the High Court.

(b) That the learned trial Magistrate and/or the State is in contempt of the Fiji Court of Appeal Order dated 30th August 2002.”

At the hearing of this appeal, counsel for the Appellant quite rightly abandoned Ground b. A magistrate who believes, after hearing submissions from both parties, that he has the legal authority to order a preliminary inquiry cannot be considered to be in contempt of court. We are therefore left with Ground a.

The Appellant was charged in February 2001, with the following offence:

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Act 17.

Particulars of Offence

RAJNESH RAJESHWAR PRASAD (father’s name Jagdishwar Prasad) on the 1st day of February 2001 at Nasinu in the Central Division had unlawful carnal knowledge of ANNIES ANSHU WILLIAMS d/o Charles William without her consent.

He was convicted by the Suva Magistrates’ Court and sentenced to 5 years imprisonment. On appeal to the High Court, the conviction and sentence were upheld. His appeal to the Fiji Court of Appeal succeeded however, and the Court ordered a retrial before another Magistrate. The case was called before another Magistrate on 16th September 2002. The court record states that on that date the defence said (Mr. A.K. Singh) “Disclosure matter is completed” and the matter was adjourned to the 24th of September 2002 for Mention.

On the 24th of September, counsel for the State applied under section 220 of the Criminal Procedure Code for a preliminary inquiry to be held in lieu of a trial. Counsel opposed the application, saying that the Court of Appeal had ordered a retrial in the Magistrates’ Court and that the State could not make the application. The learned Magistrate ruled that he was obliged to hold a preliminary inquiry and ordered that the inquiry proceed before another Magistrate on the 27th of November 2002. After several further adjournments, counsel for the Appellant advised the Magistrate that he was appealing his decision to the High Court.

At the hearing of this appeal, counsel for the Appellant submitted that the State could not have made an application under section 220 at a retrial. He submitted that although no plea had been taken, and although the accused had the right to elect High Court trial at a retrial, the prosecution had no such right. He submitted that a trial “commences” for the purpose of section 220, when the plea is taken. He had no authorities to support his submissions.

State counsel said that the order for retrial meant that the entire proceedings started afresh. She relied on the decision of the Court of Appeal in Paul Michael Emberson –v- The State Crim. App. No. AAU0002U of 1996, to support her argument that a retrial included and preserved a right to elect either High Court or Magistrates’ Court trial. She also referred to State –v- Preet Singh Verma Crim. App. No. HAA0039 of 2001 to support her submissions.

Section 220 of the Criminal Procedure Code provides:

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions hereinafter contained, and in such case the provisions of section 235 shall not apply.”

The questions for this appeal are: When does the trial commence? Is there a right for the prosecution to elect High Court trial after an order for retrial?

When does the trial commence?

Fortunately, this is a question which has been answered by many courts on previous occasions. Indeed, the law would now appear to be well-settled on the point.

In State –v- Preet Singh Verma (supra) the State made an application under section 220 after the accused had elected High Court trial and before the hearing of any evidence. The plea had already been taken. The magistrate refused to hold a preliminary inquiry and asked the State to call its first witness. The State said it had no witnesses and the magistrate acquitted the accused. The State appealed.

Fatiaki J, after considering section 209(3) and (4) of the Criminal Procedure Code, which require a Magistrate to enter the not guilty plea and proceed to hear the case, held that the trial commenced when the plea was taken and that therefore the State could not make an application under section 220 once the accused had entered a plea. He referred to, and relied on the English decisions of R –v- Vickers (1975) 2 ALL ER 945 and R –v- Tonner and Others (1985) 80 Cr. App. R. 170.

However, his Lordship’s attention was not drawn to later authorities on the same point, which came to quite a different conclusion.

In Ex Parte Guardian Newspapers [2008] EWCA Crim 1741; (1999) 1 Cr. App. R. 284 it was held by the English Court of Appeal that it was well-settled that a trial does not start on arraignment unless there is a specific statutory provision to this effect. A trial commences when the jury is sworn in.

In R –v- Southend JJ ex parte Wood, The Times, March 8 1986 the Divisional Court considered the words “begun to try the information summarily” of the Magistrates’ Court Act 1980, in relation to the right of the Magistrate to change mode of trial, and held that the justices in the Magistrates’ Court had not begun to try the case merely because the accused had elected Magistrates’ Court trial.

In R –v- St. Helens Magistrates’ Court ex parte Critchley (1988) Crim. L.R. 311, the Divisional Court held that the trial did not begin at the plea of not guilty. Of course these last two cases do not answer the question of when the trial does commence in the Magistrates’ Court. However the English authorities suggest that it commences on the date set for the hearing of the prosecution evidence. In the High Court the trial commences when the assessors are sworn in. It is for this reason that the High Court is unable to hold a voir dire until after the assessors have been sworn in (Archbold 2003 Para 4-93).

In Tonner and Others (1985) 1 WLR 344 the English Court of Appeal considered the meaning of the words “the commencement of a trial” in relation to section 72 of the Criminal Justice Act 1982, which abolished the right of an accused to make an unsworn dock statement unless the trial had begun before May 24th 1983. The defence argued that the trial had commenced on arraignment. The Court held (per Watkins LJ) adopting the statement of Ritchie CJ in Morin –v- R (1891) 18 SCR 407, a decision of the Supreme Court of Canada:

“ “Until a full jury is sworn there can be no trial, because until that is done there is no tribunal competent to try the prisoner. The terms of the juryman’s oath seem to show this. And as is to be inferred as we have seen even from what Lord Campbell says that all that takes place anterior to the completion and swearing of the jury is preliminary to the trial” ...... That expresses more aptly and clearly than we think we could what we deem to be the true position. We go further and say that our experience as judges in the criminal courts leads us inevitably to the conclusion, unassisted by the authorities to which we have referred in the course of this judgment, that it would be wholly insensible to speak of the commencement of a trial as being other than when the jury have been sworn and take the prisoner into their charge, to try the issues and having heard the evidence, to say whether he is guilty or not of the charge against him; always remembering that it is inevitably a trial by jury, not by a judge.”

Following this reasoning, when a case is first called in the Magistrates’ Court it is not for the trial of the issues, but for certain preliminary issues to be considered. One such issue is the plea. A not guilty plea is a warning that a trial will have to be heard. A guilty plea, leads to a sentencing hearing. Another issue is the election, if the accused has such a right, and another is the clarification of legal representation. After all these matters are considered the Magistrate will adjourn for a hearing of the issues in the trial proper. The date of first call is always separated from the date of hearing unless the matter is formally proved in the absence of the accused.

In Vickers (1975) 61 Cr. App. R. 48, Seaman L.J. considered whether a ruling delivered at a preliminary stage was a ruling during the trial. He said, at p.50:

“After a short adjournment the charge was then put to the appellant, who pleaded guilty to the conspiracy. We think it clear that the proceedings in which the ruling was given were not part of the trial. Arraignment is the process of calling the accused forward to answer an indictment. It is only after arraignment, which concludes with the plea of the accused to the indictment, that it is known whether there will be a trial and, if so, what manner of trial.”

Finally, Archbold (2003) Para 4-93 states:

“...... The entering of a plea of “not guilty: does not mark the commencement of the trial (Quazi –v- DPP 152 J.P. 414 DC).”

In response therefore to the first question arising from this appeal, I find that the State can make a section 220 application at any time before it opens its case in the Magistrates’ Court.

Is there a right to make a section 220 application on a retrial?

The Victorian Supreme Court in R –v- His Honour Judge Hewill Ex Parte Attorney-General for the State of Victoria (1973) UR 484 held that on a retrial the new judge could take fresh pleas of guilty.

In Hennings and Others (2001) 1 Cr. App. R. 360, the indictment on retrial was amended to replace six original counts of conspiracy to steal with six counts of theft. The Court of Appeal held that such amendment was permissible. Section 7 of the Criminal Appeal Act 1968 (U.K.) prohibits retrial on any offence other than that for which he was originally tried. The court held that a judge hearing a retrial must have the powers to amend the indictment unless the result would be to put the accused in a worse position than he had been in the original trial.

A number of Victorian cases were also referred to me which suggest that a trial commences on plea.

However, the Victorian position is governed by specific statutory provisions on the point and do not apply to this case.

Counsel for the Appellant in this case agrees that the Appellant could have elected High Court trial, and could have changed his plea to one of guilty, on the retrial.

The court record shows that fresh pleas were not taken. Nor was a date fixed for summary trial. I do not read section 220 as being excluded on a retrial, provided the application is made before the retrial commences. Further, an election by either the State or the accused is possible (before the trial commences) as is a change of plea at any time during the re-trial. Certainly there is no logical reason why a change of plea or election should be permitted on behalf of the accused, but not on behalf of the State. Further, I do not consider that a trial by assessors puts the Appellant in a worse position than he had been in the original trial.

For these reasons I find that the State may apply for High Court trial before a retrial commences and that (Ramesh Patel –v- The State Crim. App. No. AAU0017 of 1996) the learned Magistrate had no choice but to proceed to a preliminary inquiry.

Result

The appeal is dismissed. The learned Magistrate may now proceed with the preliminary inquiry.

I note that counsel for the Appellant, in the course of submissions, said that he would be applying to use part of the evidence in the original trial to cross-examine on the retrial. Such an application is likely to lead to complicated issues of law and fact. As such I consider, in passing, that the DPP’s application under section 220 was wisely made.

Nazhat Shameem
JUDGE

At Suva
3rd October 2003