Kumar v State [2015] FJHC 1012; HAA34.2015 (15 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 34 OF 2015

BETWEEN:

VINEND KUMAR
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Mrs. V. Nayara for the Appellant
Mr. J. Niudamu for the Respondent

Date of Hearing : 25th of November 2015
Date of Judgment : 15th of December 2015

JUDGMENT

1. The Appellant files this petition of appeal against the conviction and sentence of the learned Magistrate of Lautoka delivered on 10th of August 2015 on the following grounds, inter alia,
   

Appeal against the conviction

1. The Learned Magistrate erred in law and in fact when he recorded a conviction based on the fact that the accused did not give any evidence in his defence,
   

Appeal against the sentence

2. The Learned Magistrate erred in law when he sentenced your petitioner to a term of imprisonment which is harsh and excessive when there were no aggravating or mitigating factors,
   

2. The Appellant and the Respondent were directed to file their respective written submissions, which they filed as per the directions. Subsequently, the matter was set down for hearing on 25th of November 2015. The learned counsel for the Appellant and Respondent informed the court that they rely on the written submissions and do not wish to make any further oral submissions. Accordingly, I now proceed to pronounce my judgment as follows.
   
3. The Appellant was charged in the Magistrate court of Lautoka for one count of Obtaining Financial Advantage by Deception contrary to Section 318 (1) of the Crimes Decree and one count of Obtaining Property by Deception, contrary to Section 317 (1) of the Crimes Decree. The Appellant had pleaded not guilty for the two counts, hence the matter was set down for hearing on 14th of May 2012. However, the trial did not take place and was adjourned on the ground that the learned Magistrate had to proceed with another hearing. Subsequent to several adjournment, the learned Magistrate had eventually fixed 22nd and 23rd of June 2015 for the hearing of the charges. The Appellant was present in person when the learned Magistrate set the said hearing dates on 9th of February 2015. However, the Appellant failed to appear in court on the hearing date of 22nd of June 2015. The learned Magistrate proceeded the hearing in absence of the accused person.
   
4. The prosecution adduced the evidence of the main complainant and the investigation officer and tendered the caution interview of the Appellant as an exhibit during the course of the hearing. The learned Magistrate then delivered his judgment on 10th of August 2015, where he found the Appellant is guilty for these two counts and sentenced him for 2 years of imprisonment for each counts. The Appellant now appeals against the said conviction and sentence of the learned Magistrate.
   
5. Having briefly discussed the chronological background of the proceedings in the Magistrates court, I now draw my attention to the first ground of appeal.
   
6. The first ground of appeal is that the Learned Magistrate has erroneously recorded a conviction against the Appellant on the ground that the Appellant did not give any evidence in defence. However, the submissions made by the learned counsel for the Appellant is mainly founded on the argument that the learned Magistrate erred in law by allowing the prosecution to tender the caution interview of the Appellant in evidence without conducting a trial within a trial in order to determine the admissibility of the caution interview of the Appellant in evidence.
   
7. The Appellant does not challenge the discretionary jurisdiction of the learned Magistrate to proceed with the hearing in the absence of the accused pursuant to Section 171 (1) of the Criminal Procedure Decree. His contention is mainly founded on the ground that the learned Magistrate has failed to conduct a trial within a trial in order to determine the admissibility of his caution interview in evidence.
   
8. The learned counsel for the Respondent submitted that the Appellant had choose to abandon his rights in the hearing by absconding, thus a trial within a trial was not required. The counsel went on and submitted further that the Learned Magistrate has considered the evidence of the interviewing officer in his judgment in order to conclude that the Appellant has given his answers in the caution interview voluntarily.
   
9. House of Lords in R v Jones (2002) UKHL 5 held that the if the accused chose not to exercise his right to appear, he could not impugn the fairness of the trial on the ground that it had followed a course different from which it would have followed had he been present and represented. House of Lords in R v Jones (Supra) has further stated that it is an overriding duty of the judge, if the hearing was conducted in the absence of the defendant, to ensure that the trial is conduced as fair as circumstance permitted and lead to a just conclusion.
   
10. Section 171 (1) of the Criminal Procedure Decree has set down the procedure of conducting a hearing in the absence of the accused person, where it states that;
    

"the accused person does not appear before the court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present;"

11. In view of Section 171 (1) of the Criminal Procedure Decree, the trial Magistrate is required to conduct the hearing as if the accused was present. Hence, the absence of the accused is not a ground for the trial Magistrate to deviate from the applicable procedures and principles of conducting a fair and just hearing.
    
12. The Fiji Court of Appeal in Rokonabete v State ( Criminal Appeal No AAU0048.005s ( 14 July 2006) has given a directional guideline in conducting a trial within a trial, where their lordships held that;
    

"Whenever the court is advised that there is challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is not represented, a trial with a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principle trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confessions is to be held:"

13. In view of the Rokonabete guidelines, the trial magistrate must conduct a trial within a trial if the accused is unrepresented and the prosecution proposes to give his confession in evidence. Moreover, the ruling of the trial within a trial must be given before the principle trial proceeds further.
    
14. The Appellant was not represented by a lawyer in the proceedings of Magistrate court and had been appearing in person until he chose not to attend to the hearing. Under such circumstances, if the learned Magistrate decided to proceed the hearing pursuant to Section 171 (1) of the Criminal Procedure Decree, he must conduct the trial as if the accused was present and unrepresented by a lawyer. In this instant case, the learned Magistrate has failed to conduct a trial with a trial as per Rokonabete guidelines. He had proceeded with the substantive trial, admitting the caution interview of the Appellant in evidence, which is wrong in principle and also in procedure.
    
15. In view of the reasons discussed above, it is my opinion that the failure of the learned Magistrate to conduct a trial within a trial has denied the Appellant, though he was absent, a fair and proper trial, resulting the subsequent conviction and the sentence invalid and erroneous.
    
16. Having concluded that the conviction entered by the learned Magistrate is wrong and invalid, I now turn on to discuss the appropriate remedy pursuant to section 256 (2) of the Criminal Procedure Decree.
    
17. Justice Waidyarathne in Josateki Cama and others v The State (Criminal Appeal No AAU 61 of 2011) has expounded the scope of the discretionary power of the court to order for a retrial in a comprehensive manner. His Lordship observed that;
    

"It had been held that the exercise of the discretion to order a retrial requires the consideration of several factors, some of which may favour a retrial and some against it,

Public interest to prosecute offenders without terminating criminal proceedings due to a technical error by the trial judge and the availability of sufficient evidence against the accused are factors that could be considered in favour of an order for a new trial. Considerable delay between the date of offence and the new trial and the prejudice caused to the appellant due to non-availability of evidence at the new trial may favour an acquittal of the appellant".

18. It appears that the prosecution case is mainly founded on the evidence of the complainant and the caution interview of the Appellant. I am mindful of the fact that the admissibility of the caution interview in evidence need to be determined. The allegation is founded on a transaction which happened between the complainant and the Appellant. Hence the evidence of the complainant is the main foundation of the prosecution case. Accordingly, I am satisfied that the prosecution has a quality and strong case against the Appellant. Meanwhile, I consider the fact that the Appellant has already spent 4 months of his imprisonment, which could be considered as a mitigatory factor in the event if he is found guilty in a re-trial.
    
19. Having considered the reasons discussed above, it is my opinion that the strength of the prosecution case and the interest of justice have outweighed the prejudicial impact on the accused if an order of retrial is granted. Hence, I find a re-trial against the Appellant would serve the interest of justice. I accordingly quash the conviction of the Appellant and set aside the sentence. I further order an immediate re-trial before another Resident Magistrate in the Magistrate's court of Lautoka.
    
20. 30 days to appeal to the Fiji Court of Appeal.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
15th of December 2015

Solicitors : Office of the Director of Public Prosecutions
Office of Legal Aid Commission