State v Vakacoko [2008] FJHC 233; HAC150.2008 (23 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 150 OF 2008

BETWEEN:

THE STATE

AND:

APISAI VAKACOKO

Counsel: Ms. P. Madanavosa for the State
Accused in Person

Date of Hearing: Friday 12th September, 2008
Date of Ruling: Tuesday 23rd September, 2008

RULING

[1] This matter was transferred to the High Court for sentence. The Accused was convicted of rape following trial in the Magistrates’ Court. The trial was held in the Magistrates’ Court because the Accused elected that Court. He was unrepresented at trial.

[2] After a judgment of conviction, the State applied for a transfer of the case to the High Court for sentence pursuant to Section 222 of the Criminal Procedure Code.

[3] The trial magistrate granted the State’s application without reasons and transferred the case to the High Court for sentence.

[4] When the matter came before me, I invited the State to make submissions on the validity of the transfer order since the Accused is unrepresented. The State maintained that the transfer to the High Court was valid.

[5] The transfer order was made under Section 222 of the Criminal Procedure Code which provides:

(1) Where –

(a) a person over the age of 17 years is convicted by a resident magistrate for an offence; and

(b) the magistrate is of the opinion (whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person) that the circumstances of the case are such that greater punishment should be imposed in respect of the offence than the magistrate has power to impose, the magistrate may, by order, transfer the person to the High Court for sentencing under Part VII.

(2) If the person is transferred under subsection (1) to the High Court, a copy of the order for transfer and of the charge in respect of which the person was convicted shall be sent to the Chief Registrar of the High Court.

(3) The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.

(4) A person transferred to the High Court under this section has the same right of appeal to the Court of Appeal as if the person had been convicted and sentenced by the High Court.

(5) The High Court, after hearing state counsel if the counsel desires to be heard, may remit the person transferred for sentence in custody or on bail to the Magistrates’ Court which originally transferred the person to the High Court and thereafter the person shall be dealt with by the Magistrates’ Court and the person has the same right of appeal as if no transfer to the High Court had occurred.

[6] The wordings of Section 222 are clear. The circumstances in which a person convicted in a Magistrates’ Court can be transferred to the High Court for sentence are that the accused must be over the age of 17 years and that the resident magistrate is of the opinion that by reason of the nature of offence, the circumstances surrounding its commission or previous history of the accused person that greater punishment should be imposed than the magistrate has power to impose.

[7] Section 222 was amended in October 2003 when committal hearing in the magistrates’ court was abolished. The previously worded Section 222 read:

(1) Where a person, being not less than seventeen years of age, is tried by a resident magistrate for any offence, and such person is convicted by such magistrate of that offence, or of any other offence of which he is liable to conviction under the provisions of this Code then, if, on obtaining information as to his character and antecedents, the magistrate is of opinion that they are such that greater punishment should be inflicted in respect of the offence than the magistrate has power to inflict, the magistrate may, in lieu of dealing with him, commit him in custody or on bail to the High Court for sentence in accordance with the following provisions of this section.

(2) Where the offender is so committed for sentence as aforesaid the following provisions shall have effect, that is to say:-

1. the High Court shall enquire into the circumstances of the case, and shall have power to deal with the offender in any manner in which he could be dealt with if he had been convicted by the High Court; and
2. if dealt with by the High Court the offender shall have the same right of appeal to the Fiji Court of Appeal as if he had been convicted and sentenced by the High Court;

100. the High Court, after hearing counsel for the Crown if he desires to be heard, may remit the accused for sentence, in custody or on bail, to the magistrate which originally committed the accused for sentence, and thereafter the accused shall be dealt with by such court and shall have the same right of appeal as if no such committal to the High Court had been made."
     

[8] Before the amendment, a magistrate was required to hold a separate enquiry to obtain information relating to the accused’s character and antecedents before the case could be transferred to the High Court for sentence. The information relating to the accused’s character and antecedents had to be information in addition to what had already been established in trial. By a majority decision in Momotu v State, Criminal Appeal No. AAU0018J of 1994 (2 March 1995), the Court of Appeal said:

We come then to s.222(1) which we have set out earlier. This provides for the case of a trial which has proceeded in the Magistrates’ Court to the point of conviction, and the question is as to the circumstances in which the Magistrate may then commit to the High Court for sentence. The words used are clear. The Magistrate may do so if, on obtaining information as to the offender’s character and antecedents, he is of the opinion that those matters (that is, the character and antecedents) are such that greater punishment should be inflicted. Clearly this is additional to the circumstances and gravity of the offence, which have by then been established. The Magistrate must decide as a separate matter whether the character and antecedents disclose matters which make the offence a more serious one than the details of the offence itself have already shown.

[9] In a later case of Cama & Anr v The State (1995) 41 FLR 121, the Court of Appeal said:

We are satisfied that the resident magistrate erred in law in failing to address his mind to the question which he should have addressed before deciding to commit the appellants to the High Court for sentence. His purported exercise of his power of committal, therefore, miscarried. In consequence the learned trial judge lacked the power to sentence the appellants; he should have remitted the case to the Magistrates’ Court for the resident magistrate to consider afresh, after addressing his mind to the proper questions, whether he should commit one or both of the appellants to the High Court for sentence or sentence one or both of them himself.

[10] The amendment to Section 222 was intended to change the law as pronounced by the Court of Appeal decisions in Momotu and Cama. Under the amended Section 222, it is no longer a requirement that the magistrate hold a separate enquiry to obtain information on the accused’s character and antecedents before transferring the case to the High Court for sentence. However, the requirement for a magistrate to form his own opinion on transfer after directing his or her mind to the factors mentioned in Section 222 remains.

[11] In this case, the trial magistrate did not direct his mind to any of the factors such as the nature of offence, the circumstances surrounding its commission or the previous history of the Accused to form an opinion that greater punishment should be imposed than what he was empowered to impose. The learned magistrate simply acceded to the application by the State and transferred the case to the High Court. The approach was wrong.

[12] Section 222 is not a provision that gives the prosecution a right to transfer a case to the High Court when the accused has elected Magistrates’ Court. A right to transfer to the High Court is provided to the prosecution by Section 220 of the Criminal Procedure Code. The application has to be made before any evidence is called. Any application after evidence has been called is discretionary and not an entitlement. If an application is made by the prosecution under Section 220 before any evidence is called, the magistrate is obliged to transfer without enquiring into the reasons for transfer.

[13] In this case, the prosecution did not make an application before calling evidence. Instead, the prosecution made the application after calling evidence and after the Accused was convicted in the Magistrates’ Court. While the application for transfer was competent, the prosecution was not entitled to a transfer as a matter of right. The transfer was within the discretion of the learned magistrate who should have formed his own opinion after directing his mind to the matters mentioned in Section 222 before transferring the case to the High Court for sentence. The learned magistrate considered the application as if the prosecution was entitled to a transfer as a matter of right. In my view, the learned magistrate should have complied with the provisions of Section 222 and formed his own opinion on transfer. For these reasons I hold the transfer to be invalid. I also hold this Court lacks jurisdiction to sentence the Accused.

[14] The transfer order is quashed and the case is remitted to the same magistrate to consider afresh the provisions of Section 222. The Accused is remanded in custody to appear in the Magistrates’ Court on 25 September 2008 at 9.30am.

Daniel Goundar
JUDGE

At Suva
Tuesday 23rd September, 2008

Solicitors
Office of the Director of Public Prosecutions, Suva for the State
Accused in Person