Maharaj v State [2010] FJHC 553; HAM088.2010 (2 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO:

HAM 088 OF 2010

BETWEEN

NILESH CHAND MAHARAJ
APPLICANT

AND

STATE
RESPONDENT

Counsel: Ms Fong, State Counsel
Mr E Maopa - Counsel for Applicant

Date of Hearing : 24th November, 2010
Date of Ruling : 02nd December, 2010

RULING

1. Proceedings before this court are sequel to a written communication dated 14.10.2010 by an accused-person on remand.
2. It appeared as if the accused was invoking jurisdiction of this court in its original sense when he sought bail in his communication. The request of the accused for bail was subsequently sought to be regularised by learned counsel appearing for him by filing an affidavit.

3. Objections, if any, on behalf of the State, were called for on 18.11.2010; and, the matter stood down for hearing on 24.11.2010.

4. The Director of Public Prosecutions (DPP) filed some submissions instead, on 23.11.2010.

5. Legal basis, upon which bail is sought at this stage from this court, was not made out. Nonetheless, learned counsel for the accused submitted in his submissions at the hearing that he was appealing against the refusal of bail by the learned Magistrate dated 12.10.2010.

6. The appellate procedure is specifically spelt-out under the Criminal Procedure Decree of 2009 in terms of sections 246-250 so as to result in the case record being submitted to this court upon the exercise of the right of appeal by a litigant. As the case record did not accompany the purported appeal, this court called for the record by 29.11.2010 and reserved the ruling on bail for 30.11.2010.

7. The record, however, did not reach this court by 29.11.2010. Consequently, the ruling was re-fixed for 02.12.2010 to enable court to examine the case record.
   
8. Upon an examination of the case record of the Magistrate's Court, it transpired as follows:
   

i 'Proceedings were initiated on 1st July, 2009 before the Magistrate's Court of Lautoka against the accused, Nilesh Chand Maharaj, on ten counts on the basis of a complaint by Police. Counts 1,4, 8 related to the offence of 'Forgery', counts 2,5,9 related to the offence of 'Uttering Forged Document', counts 3, 6,10 related to the offence of 'Obtaining Money on Forged Document', while count 7 related to the offence of Larceny by Servant'. The offences were punishable under sections 335(2) (a), 343 (1), 345 and 274 (a) (2 of the Penal Code, CAP 17 respectively.
ii Learned Magistrate, upon the production of the accused in court on 01st July, 2009, admitted the accused to bail in a sum of $ 1000.00 and accepted his father as the surety. Other conditions imposed by the learned Magistrate inter alia included a 'bail undertaking' as prescribed by Section 21 of the Bail Act 2002 (the Act) for the accused to appear before court 'upon adjournment, committal or otherwise'. The undertaking by the accused to appear in court whilst on bail was further reinforced through a written acknowledgement by the surety as required by Section 22 of the Act stating that he would owe a sum of $ 1000.0 in the event of a failure by the accused to attend court in future proceedings in the case.
iii Hearing, thereupon, was adjourned for 20.07.2009 for the plea of the accused to be taken.
iv On 20.07.2009, the accused pleaded guilty to all ten counts and informed court that he would pay back the amounts of money involved in the offences, as applicable. The total amount alleged to have been defrauded was $ 48,588.47. The accused made a payment of $ 2000.00 and moved for time to effect full restitution within two-three months. The case was then adjourned for 26.10.2009.
v On 26.10.2009, the accused was absent and no explanation was offered even though the surety-father was present in court. A bench-warrant was accordingly issued by the learned Magistrate for 21.12.2009.
vi Failure by the accused to appear in court and the failure to execute the warrant by Police compelled court to extend the validity of the warrant from 21.12.2009 on many occasions up until 10.09.2010, on which date the accused was arrested and produced in court.
vii Learned Magistrate, upon his production before him after the arrest, made order on 10.09.2010 which read as follows:
'It appears that the accused has been absconding for almost one year. The accused has pleaded guilty and case has been adjourned for him to do restitution. It appears that the accused has evaded court for a long period of time. If the accused is granted bail, it appears that he will not appear in court again. Further, the offence[s] he committed [are] serious and [they] involve large amount of money.
Having considered the submissions by both parties, I remand the accused in custody.
Accused makes an application to change the plea. Prosecution to file objections to the application'.
viii The case stood, thereafter, adjourned for 24.09.2010
ix The accused made an application for bail on 24.09.2010, whereupon the learned Magistrate ordered that objections of the prosecution be filed along with its response to the application for the change of plea. A date for trial, being 08.10.100, was given by the learned Magistrate.
x On 08.10.2010, the learned Magistrate, considered the application for bail in light of the objections by the prosecution and made his ruling on 12.10.2010 refusing bail. The case was set-down for hearing on 06.12.2010.
9. It was in this context of refusal by the learned Magistrate of the application for bail that the accused has addressed the communication to this court on 14.10.2010 seeking bail pending trial as referred to above.
10. The accused relies on 'right to be released on bail' under Section 3(1), reasons to be considered in refusing bail under Section 18(1), primary consideration in deciding whether to grant bail is the likelihood of the accused appearing in court under Section 17(2) and public interest and protection of community under Section 19(2)(c) of the Act.
11. Be that as it may, the communication dated 14.10.2010 by the accused, the purported regularisation of the communication by way of an affidavit dated 18.11.2010, the written-submissions filed on behalf of the DPP dated 23.11.2010 and oral submissions of both counsel at the hearing did not have the effect of disclosing all the material facts especially the fact that the accused had tendered a 'plea of guilty' and that it was only thereafter that he had breached bail. Nor was it disclosed that there was no, in fact, an appeal before this court as provided for by the Decree.
12. However, this court having seized of the matter now, decided to assume jurisdiction in revision as provided for by Section 260 (1) of the Criminal Procedure Decree of 2009 (the Decree) in order to consider the propriety of the proceedings before the Magistrate's Court and its rulings in regard to bail.
13. It appears that the learned Magistrate, who presided court on 20.07.2009, had fallen into error when he adjourned proceedings for 26. 10.2009 without proceeding to convict the accused after the plea of guilt was tendered. It is mandatory under Section 174 (1) and (2) of the Decree to enter an order of conviction and to sentence as provided for under the Decree. The position was the same under Section 206 (1) and (2) of the Criminal Procedure Code, which was in force as at 20.07.2009. The section does not postulate a system whereby the Magistrate is empowered to adjourn proceedings to effect restitution to the virtual complainant. Restitution, if at all, could be considered only after conviction, the outcome of which can then be considered in imposing an appropriate sentence under the Sentencing and Penalties Decree. Any order violative of this procedure is not mandated by law and would therefore be improper and unlawful.
14. This impropriety in procedure had paved the way for the accused to abscond having violated his bail undertaking which conduct also undermined the authority of court. This has, on the other hand, resulted in prolonging the proceedings and consumed a substantial amount of time and resources of court and of the State.
15. This court is of the view that the nature of the error made by the learned Magistrate warrants its setting-aside. However, it appears that any decision to quash the order of the Magistrate of 20.7.2009 would now be superfluous as the accused, on his apprehension, has informed court that he would withdraw the plea of guilt. The learned Magistrate, even though no specific order has been made in regard to the application of the accused, has fixed the case for trial, which implies that the earlier plea any longer does not have an effect.
16. As regards bail, the learned Magistrate was correct in his ruling of 10.09.2010, when he committed the accused to remand custody in consequence of the failure by the accused to appear in court after being released on bail. The succeeding Magistrate was equally correct, when he refused bail upon consideration of the application for bail and State's response. I do not see any illegality in the two orders of the Magistrates for this court to interfere.
17. It is to be noted that the accused on his first appearance in court was admitted to bail in recognition of his 'right to be released on bail' as set-out in Section 3 (1) of the Act. His admission to bail on the first available opportunity was also to give effect to the presumption in favour of granting bail as spelt-out in Section 3(3) of the Act.
18. This presumption is rebuttable under Sections 3(4), 17, 18, 19 of the Act. The legal nature and the effect of this rebuttable presumption is that, once it is rebutted, the scheme of the Act does not permit its reinstallation unless there are good and sufficient reasons. These reasons, I hold, should satisfy court that the breach of bail, which resulted in rebutting the presumption under Section 3 (4), was due to the reasons beyond control of the accused. The burden lies on the accused-the one who breached the undertaking to court. The failure to satisfy court will result in the accused being committed to remand custody until the case is concluded.
19. For the above reasons, there is no legal basis for this court to interfere with any of the rulings made by the learned Magistrates in this case in regard to bail.
20. Application refused.
PRIYANTHA NAWANA
JUDGE
HIGH COURT
LAUTOKA
02nd December, 2010