Singh v State [1991] FJLawRp 15; [1991] 37 FLR 130 (2 December 1991)

[1991] 37 FLR 130

HIGH COURT OF FIJI

ANIRUDH SINGH & OTHERS

v

STATE

[HIGH COURT, 1991(Jesuratnam J), 2 December]

Appellate Jurisdiction

Crime - procedure - non electable offences - whether option of High Court trial affected by Electable Offences Decree 1988.

Crime - offences - sedition and unlawful assembly - whether serious enough to warrant committal to the High Court for trial.

Having been charged with sedition and unlawful assembly the accuseds' requests to be tried in the High Court were refused by the Chief Magistrate. On appeal against the refusal the High Court HELD: (1) the Electable Offences Decree 1988 did not affect the Magistrates discretion to decide whether the seriousness of the charges warranted trial in the High Court and (2) in the circumstances the Magistrate had rightly decided that they did not.

Case cited:

Charles Dennis 18 Cr. App. R. 39

Interlocutory appeal to the High Court.

Miles Johnson for 1st, 2nd, 4th, 5th, 6th & 7th appellants
M. Raza for the 3rd appellant
I. Mataitoga, Director of Public Prosecutions for the State

Jesuratnam J:

In this case the seven appellants were charged in the Magistrates' Court of Suva on two counts of (1) having burnt a copy of the Constitution of the Republic of Fiji on 18th October 1990 with seditious intention contrary to section 65(1)(iv) and 66(1)(a) of the Penal Code and (2) having taken part in an unlawful assembly on the same day contrary to section 86 and 87 of the Penal Code.

It is recorded that on 15th November 1990 all the accused elected High Court trial and the case was puff off for 29th November 1990 in order to finalise the position of all the accused as to the form of preliminary inquiry.

It appears that all parties, the prosecution, defence and the learned Chief Magistrate acted on the erroneous basis that the offences were electable at least the offence in Count 1. More attention seems to have been devoted to the acrimonious question of conditions of bail. When the true position was realised the prosecution objected to High Court trial on the basis that the offences were non-electable in view of The Electable Offences Decree No. 22 of 1988. The defence however persisted in its purported election and argued that the magistrate was functus officio to change his earlier decision to hold a preliminary inquiry with a view to committal for trial by the High Court. After argument the learned Chief Magistrate ruled that the appellants had no right of election and that he was of the view that the case should be tried summarily by him.

The appellants have appealed to this Court from the learned Chief Magistrate's decision. I shall deal with the grounds of appeal one by one.

I may say straightaway that I have not been impressed by the argument on the first ground that the learned Chief Magistrate had no power to vary his earlier decision to hold a preliminary inquiry. That was a decision which was obviously based on a mistake - a bona fide mistake made by all the parties. Mistake cannot confer jurisdiction where it does not exist. It is now admitted by the defence that the offences are not electable. As such there cannot be a preliminary inquiry with a view to committal unless the DPP successfully moved for a High Court trial with the concurrence of the learned magistrate or the learned magistrate himself in the exercise of his discretion decided that it was a case for committal. Such a course can only take place by the conscious exercise by the magistrate of his discretion.

At that stage the learned magistrate cannot be deemed to have taken all matters into consideration and exercised his discretion to hold a preliminary inquiry. He had merely acquiesced and concurred in the wrong view shared by both the prosecution and defence that the offences were electable. Avory J. said in the English Court of criminal appeal in the case of Charles Dennis (18 Cr. App. R.39) at 40:

"An irregularity may be waived by consent but not a want of jurisdiction."

The decision of the learned Chief Magistrate to hold a preliminary inquiry was a nullity. That ground therefore fails.

On the other grounds of appeal Mr. Johnson who appeared for six of the seven appellants strenuously argued that the case involves serious questions which are fit for trial by the High Court and that the learned Chief Magistrate had exercised his discretion wrongly in refusing a preliminary inquiry. He cited English authorities in support of his argument. He contended that the classification of offences into the electable and non-electable categories by Decree No. 22 of 1988 is not conclusive of the question whether the offence is serious or not.

Mr. Johnson submitted that in the first place this was a case in which in the interests of justice the DPP should have himself moved for a High Court trial as serious questions were involved. Even if the DPP did not do so the learned Chief Magistrate in the exercise of his discretion under section 224 of the Criminal Procedure Code should have taken committal proceedings.

The DPP's position is that he never moved for a High Court trial as the offences were not electable and that no serious issues were involved. He also argued that the magistrate has now no power to initiate committal proceedings on his own under section 224. The DPP argues that section 6 of the Electable Offences Decree of 1988 has abrogated the entirety of section 224 of the Criminal Procedure Code. I do not agree. Section 224 contemplates three situations in which a magistrate should initiate committal proceedings (1) when the offence is not triable summarily by the magistrate (2) when the magistrate is of the view that a preliminary inquiry should be held or (3) when the public prosecutor moves for a preliminary inquiry. In my view the Electable Offences Decree of 1988 has in effect altered the first situation and abolished the third situation but has preserved intact the second situation. Section 3 of the Decree now fills the first situation largely and section 4 of the Decree the third situation. But the right of the magistrate to hold a preliminary inquiry in a case in which he deems it fit to do so is preserved and in my view rightly preserved in view of possible cases where such recourse may be necessary.

What section 6 of the Decree has done is to declare as overridden and invalid those provisions of the Criminal Procedure Code which are repugnant to the provisions of the decree. The decree overrides the Criminal Procedure Code only "to the extent that this decree deals with the right of trial in the High Court of offences prescribed in the schedule." The second situation therefore remains unaffected.

I am of the view that the learned Chief Magistrate rightly construed that he had a discretion to exercise under section 224 of the Criminal Procedure Code. However the crux of this appeal is whether the learned Chief Magistrate has exercised his discretion and exercised it correctly.

The argument of Mr. Johnson is that the learned magistrate was guided by the labels as to whether an offence is electable or not or whether it is a misdemeanour or not. He has not gone further and considered whether the offences were serious enough to merit trial in the High Court. The word `serious' is used in many of the English authorities that have been cited but that word does not appear in Section 224 of the Criminal Procedure Code although it is used in the proviso to section 4 of the Decree where the magistrate has to consider whether serious or difficult questions of law or fact or both are involved in an application made by the DPP.

Can it be seriously argued that the learned Chief Magistrate would have considered the seriousness of the offence only in the event of an application made by the DPP and not otherwise when he himself exercises his discretion under section 224? I am of the view that the learned Chief Magistrate addressed his mind to the seriousness of the questions involved although he has not said so in so many words. It comes to the same thing whether he used the word "serious" or not if in fact he took into consideration the gravity, complications and weight of the issues that were involved in the case. It appears to my mind that the learned Chief Magistrate took all relevant factors into consideration when he said in his second ruling that he was "not persuaded having considered the submissions by defence counsel" to exercise his discretion under section 224 of the Criminal Procedure Code.

I have no doubt that the defence submissions would have been as impressive and as comprehensive in the Magistrates' Court as they were before me. Even in the learned Chief Magistrate's first ruling was marred by the failure to hear defence counsel as alleged the second ruling was not affected by any such infirmity.

The English authorities do not seem to be in point in this case. In those cases the issue was serious considering the inadequacy of the punishment that was meted out. That surely cannot be the defence contention in this case. It seems to be that the learned Chief Magistrate was right in not having seen any exceptional circumstances which would have merited a trial in the High Court in this case. Any other decision would also have set an unhealthy precedent which would upset the work of the Magistrates' courts.

The fact that some of the appellants are highly placed in life does not take the case into the serious category. Nor does the fact that in this case it was the Constitution that is alleged to have been burnt elevate it to a case of constitutional importance. All are equal before the law. They should all be tried in the same manner in the same courts.

I dismiss the appeals.

(Appeals dismissed)