Ali v State [2022] FJHC 62; HAA78.2020 (21 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 78 OF 2020

BETWEEN:
HASRAT ALI
APPELLANT

A N D:
THE STATE
RESPONDENT

Counsel: Ms. E. Radrole for Appellant
Ms. S. Naibe for Respondent

Date of Hearing: 26^th November 2021

Date of Judgment: 21^st February 2022

J U D G M E N T

1. The Appellant was charged in the Magistrate’s Court of Sigatoka with one count of Conspiracy, contrary to Section 49 (1) of the Crimes Act. The Appellant had pleaded not guilty to this offence; hence, the matter had proceeded to the hearing. At the conclusion of the hearing, the learned Magistrate, in his judgment dated 2nd of September 2020, found the Appellant guilty of this count and convicted accordingly. The Appellant was sentenced to a period of three years and six months imprisonment with a non-parole period of two years on the 13th of November 2020. Aggrieved with the said conviction and the sentence, the Appellant files this appeal on the following grounds inter alia:
   
2. (i) That the sentence is harsh and excessive.
3. (ii) That the sentencing Magistrate did not consider the mitigation of the applicant
4. (iii) That the sentencing Magistrate erred in law by not directing himself to consider the applicant’s good character.
5. (iv) That the sentencing Magistrate erred in law by not directing himself to consider the applicant’s previous conviction.
6. (v) That the sentencing Magistrate erred in law by not directing himself of the defective charge.
7. (vi) That the sentencing Magistrate prejudiced the unrepresented applicant.
   
2. This appeal was first called in this Court on the 1st of February 2021. The matter had to be adjourned five times between the 1st of February 2021 and the 12th of April 2021 due to the failure of the Magistrate’s Court to provide the record of the proceedings of the Magistrate’s Court. Eventually, the proceedings of the Magistrate’s Court reached this Court on the 18th of May 2021. Subsequent to this long delay, on the 15th of October 2021, the Court ordered the parties to file their respective written submissions on or before the 19th of November 2021 and adjourned the matter till the 16th of December 2021 for the judgment. Unfortunately, the Counsel for the Appellant and the Respondent failed to file their written submissions as per the directions of the Court. Hence, the Court issues notice ex moro motu, requesting the learned Counsel for the Appellant and the Respondent to appear in Court on the 26th of November 2021, to inquire whether the parties, especially the Appellant, was still interested in this Appeal. The parties were again directed to file their respective written submissions, which they eventually filed as per the directions.
   
Having carefully perused the proceedings in the Magistrate’s Court and the judgment of the learned Magie, I found the confession mion made by the Appellant in his caution interview had tendered in evidence by the Prosecution. The Appellant was unrepresented in the Magistrate’s Court. No trial within a trial was conducted to determine the admissibility of the confession made in the caution interview in evidence. I accordingly invited the learned Counsel for the Appellant and Respondent to make submissions to determine whether the Appellant had a fair trial in the Magistrate’s Court.

4. Every person charged with an offence has a right to a fair trial. (vide; Section 15(1) of the Constitution). All the judicial officers are entrusted with an onerous responsibility and obligation to ensure that the accused is given a fair trial. (vide; Section 6(1) of the Constitution). This obligation must be carefully and vigilantly exercised, especially in a case where the accused is unrepresented. An unrepresented accused in the adversarial criminal justice system stands in an asymmetrical power situation. Legally trained Prosecutors always represent the State. Under such circumstances, the trial Judge or the Magistrate has the responsibility of advising the unrepresented Accused about the procedural rules that are capable of protecting his rights, thus providing him a fair trial. However, this responsibility does not extend to advising the Accused on how to conduct his case. (vide; Tuidravu v The State [2006] FJCA 55; AAU0035.2005 (10 November 2006), Tubuna v State [2017] FJHC 155; HAA024.2016 (28 February 2017). If the accused was unaware of any procedural steps that are advantageous to him if invoked, such a proceeding could not be considered a fair trial. Therefore, the proactive role of the Judicial Officer is a vital component to ensuring a fair trial.
   
5. This intervention of the Judicial Officer should not be viewed as a departure of the impartiality of the Judicial Officer in determining the dispute before him. It is a constructive intervention to bring the unrepresented accused to an asymmetrical level, making him equal before the law.
   
6. Section 13 (1) (d) of the Constitution states that:
   

“Every person who is arrested or detained has the right not to be compelled to make any confession or admission that could be used in evidence against that person.”

7. Moreover, Section 14 (2) (k) of the Constitution has stipulated that:
   

“Every person charged with an offence has the right not to have unlawfully obtained evidence adduced against him or her unless the interest of justice requires it to be admitted.”

8. Accordingly, any statement made by the Accused, which contains an admission, is always being admitted in evidence through judicial scrutiny. The Accused could always challenge the admissibility of the confession in evidence on the grounds of voluntariness and fairness. If the Accused challenged the admissibility of the confession in evidence, the Court is required to conduct a trial within a trial (voir dire hearing).
   <
9. The Fiji Court of Appeal in [ FJCA 40; AAU0048.2005S (14 July 2006) has outlinedcircumstancetancetances under which the court should hold voir dire hearing, where the Fiur Court of Appeal held that:
   

“Whenever the court it advised thate is challenge to the confeconfession, 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 principal 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 confession is to be led.” (underline is mine)

10. Accordingly, the Court must hold a trial within a trial if the accused is unrepresented, and the Prosecution relies on the caution interview made by the Accused, which contains a confession, in evidence.
    
11. The Appellant was unrepresented during the hearing e Magistrate’s Court. The caution interview of the Appellant was tendered in evidencedence by DC Sunil Dutt, the third witness of the Prosecution. According to the Rokonabate guideline, the learned Magistrate is required to conduct a trial within a trial to determine the admissibility of the confession in the caution interview in evidence. The learned Magistrate had failed, at least, to explain the Appellant his right to challenge the admissibility of the caution interview in evidence.
    
12. In view of the reasons discussed above, I am satisfied that the Appellant was not given a fair trial in the Magistrate’s Court. Therefore, the conviction entered against the Appellant under such circumstances cannot be stand. Based on the above finding, I do not find any reason to consider the other grounds of appeal.
    
This alleged incident had taken place on the 26th of July 2013, and the Appellant had already served one year and three months of his sentence. Therefore, I find a re-trial would indeed prejudice the interest of the Appellant. I accordingly do not find this is a proper case to order for a re-trial.

14. In conclusion, I make the following orders.
    
    1. The Appeal is l is allowed,
    2. The conviction dated 2nd of September 2020 is quashed and the sentence dated 13th of November 2020 is set aside.
       
15. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

.................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva
21^st February 2022

Solicitors
Office of the Legal Aid Commission for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.