State v Chaudhary [2011] FJHC 223; HAM058.2011 (14 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Crim. Misc. Case No: HAM058 of 2011

BETWEEN:

THE STATE
Applicant

AND:

MAHENDRA PAL CHAUDHARY
Respondent

Hearing: 8 April 2011
Ruling: 14 April 2011

Counsel: Ms N. Tikoisuva & Mr. W. Pillay for State
Mr. R. Chaudhry for Respondent

RULING

[1] The court of its own motion invited submissions from the parties on the validity of the transfer order in this case. The State responded by filing a motion seeking leave to supplement the Magistrates' Court record. The State's motion is supported by an affidavit sworn by Mr. Aca Rayawa, former Acting Director of Public Prosecutions, who appeared for the State in the proceedings in the Magistrates' Court.

[2] The accused responded by filing an affidavit sworn by him.

[3] The affidavits of Mr. Rayawa and the accused were forwarded to the learned Magistrate for his comments. The learned Magistrate responded by forwarding his comments in writing.
[4] Since there is a dispute about what transpired in the Magistrates' Court, I give leave to the State to supplement the court record by the comments of the learned Magistrate that were forwarded to this court on 6 April 2011.

[5] The case was transferred to the High Court upon the State's application. The transfer application was governed by section 188(2) of the Criminal Procedure Decree. Section 188(2) provides:

Before the calling of evidence at trial, an application may be made by a public prosecutor or police prosecutor that the case is one which should be tried by the High Court, and upon such an application the magistrate shall –

(a) hear and consider the reasons for the application;
(b) hear and consider any submissions made on behalf of the accused person as to the most appropriate court to hear and determine the charges; and
(c) otherwise determine matters relevant to the grounds for the application –

and may continue to hear the case (unless the charges are of a nature that may be tried only by the High Court) or transfer the case to the High Court under Division 3 of this Part.

[6] The transfer application was made on the first day the case was called in the Magistrates' Court. The State's application was properly brought under section 188(2) as the trial had not commenced and no evidence had been led by the prosecution.

[7] Once an application for transfer is made by the State, the Magistrate must comply with subsections (a) to (c).

[8] Section 188(2) has completely changed the old law contained in the Criminal Procedure Code which gave the prosecution unfettered discretion before calling of evidence to elect High Court trial The old law was contained in section 220 of the Criminal Procedure Code. Section 220 provided that once the prosecution applied for transfer, the Magistrates' Court had no discretion but to transfer the case to the High Court.

[9] There is now a discretion given to the Magistrates' Court when an application for transfer is made by the State under section 188(2). The discretion must be exercised having regard to the matters specified in subsections (a) to (c).

[10] According to the learned Magistrate, on 23 July 2010, the case was called in the Magistrates' Court. Mr. Rayawa appeared for the prosecution and Mr. Chaudhry appeared for the accused. The charges were read out in open court. The accused acknowledged that he understood the charges.

[11] After the charges were read out, Mr. Rayawa made an application for transfer of the case to the High Court. Mr. Chaudhry consented to the transfer by nodding and saying "yes." The learned Magistrate then made the transfer order.

[12] The learned Magistrate stated that he did not personally ask the accused's view on the State's application for transfer because he was represented by counsel. No reasons were given for the order because counsel for the accused consented to the transfer.

[13] The issue is whether section 188(2) was fully complied with when the decision was made to transfer the case to the High Court.

[14] Mr. Chaudhry on behalf of the accused submits that the learned Magistrate did not hear and consider the reasons for the application, he did not hear and consider any submissions made on behalf of the accused and he did not give reasons for his order. Mr. Chaudhry submits that the transfer is invalid and that the case should be remitted to the Magistrates' Court for consideration of the State's application for transfer.

[15] The key words in subsections (a) and (b) are "hear and consider." What this means is that the parties should be accorded due process before a transfer order is made.

[16] In the present case, the parties were accorded due process. The prosecutor was given an opportunity to make the application and the accused was given an opportunity to respond to that application. The accused responded through his counsel by consenting to the transfer to the High Court.

[17] I find counsel for the accused gave a valid consent to the transfer order and therefore there was no reason for the learned Magistrate to conduct further inquiry into the matter or to give reasons for the transfer order.

[18] I find there was a full compliance with section 188(2) of the Criminal Procedure Decree. The transfer is valid and this court has jurisdiction to try the accused.

Daniel Goundar
JUDGE

At Suva
14 April 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Messrs. Gordon & Chaudhry Lawyers for Respondent