State v Tuiyanawai [2005] FJHC 145; HAC0022Z.2004S (20 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004S

STATE

v.

SAMISONI TUIYANAWAI;
SEMISI WAINIQOLO;
SOLOMONE BOINI; and
MOSESE YACO

Hearing: 17th June 2005
Ruling: 20th June 2005

Counsel: Mr. W. Kuruisaqila for State
All accused in person

RULING

The 3rd Accused has failed yet again to appear for his trial. He was granted bail on condition (amongst others) that he appear in court when ordered to do so. This trial could not proceed for the whole of last week because of his non-appearance. On Tuesday the 14th of June, I issued a bench warrant, but execution was held off because a relative appeared with a medical report which appeared to say that he had suffered an accident and was unfit until the 18th of June. The letter “8” however was over-written and the clerk of the court telephoned the doctor at the Lami Health Centre to verify the date. The medical records at the centre showed that the 3rd Accused was given a certificate saying that he was unfit until the 16th of June. A second medical report given to the relative, which conformed to the requirements of the Criminal Procedure Code, did not state for how many days the Accused was unfit to attend court. He failed to attend court on the 15th and the 16th of June and I ordered the execution of the bench warrant.

The 3rd Accused is not in court today. He was not at the address recorded in his bail form, nor at any other address known to the police. It appears that he is evading the police and the court process. State counsel informs me that statements (which he tendered) obtained from two doctors, state that a medical report was only issued at the 3rd Accused’s insistence and that there appeared to be nothing medically wrong with him. Indeed the statements imply that he was malingering.

The law permits me to proceed in his absence with his implied consent. Section 28(1)(h) of the Constitution provides that every person charged with an offence has the right not to have the trial take place in his absence, unless the court is satisfied that the person has been served with a summons or other process requiring his attendance and has chosen not to attend.

In R v. Jones [2002] UKHL 5, 2 All ER 113, the defendant was arraigned on a charge of conspiracy to rob. He was bailed to appear for trial but failed to do so. A bench warrant was issued. His counsel withdrew from the proceedings. The trial was relisted to another date. The defendant had not been arrested by that date, nor had he surrendered. The trial judge decided to proceed with the trial in his absence, finding that the defendant had deliberately frustrated the attempt of the prosecution to have the case concluded. The defendant was convicted and sentenced in his absence.

Subsequently, the defendant was arrested. He appealed against conviction. The Court of Appeal upheld his conviction, saying that by his conduct he had clearly waived his right to be present at the trial. On appeal to the House of Lords, the court agreed with the Court of Appeal, saying that where a defendant of full age and sound mind with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason why his absence should automatically suspend criminal proceedings against him. A trial held in the absence of the defendant did not offend the European Convention for the Protection of Human Rights and Fundamental Freedoms or the U.K. Human Rights Act 1998. The Court could proceed in the absence of the defendant but should conduct the proceedings with fairness. Relevant considerations in deciding to proceed in the absence of the defendant are the reasons for the absence, legal representation and length of absence. The seriousness of the charge was not relevant (per Lord Bingham).

In this case, the Accused has now absented himself since the 14th of June. The medical reports he submitted are unacceptable to me and in any event only gave him of an excuse for his absence until the 16th of June. This trial relates to events in 2003, and there are 3 other accused persons all of whom have respected their bail conditions and who are entitled to have their cases dealt with within a reasonable time. The accused is not at the address he is supposed to remain at according to his bail form. The police cannot find him. I am satisfied that he is deliberately evading the police and this court. Despite the fact that he is unrepresented, I consider that the trial should now proceed in his absence. I will ask questions of witnesses myself that I consider the Accused might have asked, had he been present.

This trial will proceed today.

Nazhat Shameem
JUDGE

At Suva
20th June 2005