Khalil v State [1992] FJLawRp 29; [1992] 38 FLR 198 (30 September 1992)

[1992] 38 FLR 198

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

MOHAMMED KHALIL

v

THE STATE

Helsham P, Tikaram, Kapi JJA.

30 September 1992

Crime - procedure - when to commit non electable offences for trial in the High Court - Criminal Procedure Code (Cap 21) Section 220.

A resident magistrate refused a defence application that a part-heard trial of a non-electable offence continue by way of preliminary enquiry. On a second appeal against the refusal the Court of Appeal discussed the circumstances in which such an application should be granted and dismissed the appeal.

Cases cited:

Anirudh Singh v The State H.C. Crim. App. 61/91
Josua Tuiqaqa v Reginam Crim App 2/1986

M. Raza for the Appellant
Ms N. Shameem for the Respondent

Judgment of the Court:

The appellant was charged with 10 counts of obtaining money by false pretences contrary to s. 309(a) of Penal Code Cap. 17 in the Labasa Magistrates Court.

On the 6th March, 1989, he appeared in Court and pleaded not guilty to all the counts. The case was adjourned for hearing on the 29^th June, 1989.

The case was further adjourned to the 14^th July, 1989. Witnesses for prosecution were not present on this date and the matter was adjourned to 2nd November 1989 on application of the prosecution.

On the 2nd November 1989, the appellant was represented by a lawyer, Mr. Kohli. At the request of the prosecution, the case was specially fixed for hearing on 26th-28th March, 1990.

On 26 March 1990, the appellant appeared with his lawyer. Mr. Kohli. The lawyer informed the Court that the appellant had not seen him until 8.55 a.m. that morning. It is not clear form the record whether Mr. Kohli then applied for an adjournment. Nevertheless, the record shows that the Magistrate was willing to adjourn the case to 2 p.m. later that day to enable Mr. Kohli to see the appellant but Mr. Kohh indicated that this was not sufficient. The Magistrate ruled that the appellant had sufficient time to see his lawyer and that he would not adjourn the case to another date. Upon this ruling, Mr. Kohli immediately withdrew from the case. No reasons were recorded for the withdrawal.

The trial commenced at 9.55 a.m. and prosecution called 20 witnesses over a period of 3 days. On the 4th day of the trial, 29th March 1990, the appellant did not appear but his father appeared and informed the Court that the appellant had been sick and that he had been admitted to the hospital the night before: The case was then adjourned to 17th April, 1990 for mention.

On the 17th April 1990, the appellant was present and he was represented by another lawyer, Mr. Raza. On this date, Mr. Raza made an application to the Court under s.220 of the Criminal Procedure Code (Cap 21) (hereinafter referred to as CPC,) and asked the Magistrate to rule that this is a case which ought to be tried by the High Court and he should not proceed with the trial but in lieu thereof hold a preliminary inquiry in accordance with the provisions of CPC. Corporal Chetty, the police prosecutor, objected to this application.

The Magistrate refused the application.

The appellant then appealed to the High Court on the sole ground:

"that the learned Magistrate erred in law in not giving effect to the provisions of section 220 of the Criminal Procedure Code Cap. 21"

This appeal was heard by the learned Chief Justice and he dismissed the appeal and confirmed the decision of the Magistrate. The appellant has appealed to this Court; pursuant to s.22(1) of the Court of Appeal Act. (Cap. 12) (hereinafter referred to as CAA). That section, so far as relevant, provides:

"22.-(1) Any party to an appeal from a magistrate's court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only."

The appellant appealed on 2 alternative grounds but he has abandoned the alternative ground. The remaining ground of appeal is:

'That the learned Chief Justice erred in law [sic] in dismissing the appeal when [sic] it seemed patent that the trial magistrate's ruling was not judiciously exercised bearing in mind s. 188 of the Criminal Procedure Code."

What are questions of law as opposed to question of mixed fact and law are not always easy to determine from the decided cases. In view of the fact that counsel for the respondent has not contested that the ground of appeal in this case involves a question of law, it is not necessary for us to determine the meaning and scope of the words "question of law" under s.22(1) of CAA. The Court is prepared to assume without deciding that the ground of appeal in this case raises a question of law which relates to the proper grounds upon which a magistrate may exercise his discretion to hold a preliminary inquiry under s.220 of CPC.

The Chief Justice determined the issue in the following passages:

"Mr. Raza appears to rely mainly on Mr. Kohli's withdrawal from the case and thereby leaving the appellant unrepresented B as a basis for submitting that a preliminary inquiry should have been held in the case.

The Magistrate's Court did not find any merit in that line of reasoning.

Between Mr. Kohli and appellant, they were given ample time to prepare the defence. The learned trial Magistrate hard adjourned the case on 2 November, 1989 for hearing on 26, 27 and 28 March, 1990. There really could be no ground for complaint by the defence, having had almost five months to prepare itself.

During the prosecution case in which twenty prosecution witnesses gave evidence the appellant showed from his cross-examination of those witnesses that he suffered no particular disadvantage or prejudice from Mr. Kohli's withdrawal from the case. Clearly the application made under Section 220 of the Criminal Procedure Code was misconceived inasmuch as there was no ground to justify the exercise of the Court's discretion in the manner sought by Mr. Raza. The, charge preferred against appellant namely obtaining money by false pretences contrary to Section 309(a) of the Penal Code was a non-electable offence, a fact which clearly argued against the holding of any preliminary inquiry in the case.

The onus is on appellant to demonstrate that the exercise by the Court of its discretion in the matter alleged was wrongful or improper as a matter of judicial principle. Appellant has plainly failed to discharge that onus."

This issue calls for a proper interpretation of s.220 of CPC. It is in the following terms:

"If before or during the course of a trial before a magistrates' court it appears to the magistrate that the case is one which ought to be tried by the High Court or if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions here in after contained, and in such case the provisions of section 235 shall not apply. (Substituted by 26 of 1945, s.3.)"

Section 220 of CPC contemplates two situations in which a Magistrate may conduct a preliminary inquiry (i) when the magistrate is of the opinion that the case is one which ought to be tried by the High Court or (ii) when the Public Prosecutor applies to have the case tried by the High Court. In the case of the former, a magistrate may do this before or during the trial. In the case of the latter, the application by the Public Prosecutor must be made before the commencement of the trial. This case is concerned with the former situation.

We were not referred to the provisions of the Electable Offences Decree of 1988 and its effect on s, 220 of CPC. However, we are satisfied that while the Decree may have altered the 2nd situation (it is not necessary for us to decide this on this appeal) it has not affected the 1st situation in which the magistrate is of the opinion that a preliminary inquiry should be made. See Anirudh Singh and 6 Others -v- State, High Court Criminal Appeal No. 61 of 1991 dated 2nd December 1991.

The basis of the exercise of discretion by a magistrate is governed by the words "that the case is one which ought to be tried by the High Court".

The proper criteria that should be applied in determining this question are; whether it is in the best interest of a fair trial and the proper administration of justice that the case ought to be tried in the High Court. The relevant considerations would include such matters as the serious nature of the offence, any complicated issues of law or fact or both (see Anirudh Singh & 6 Others -v- State (Supra)). In Josua Tuiqaqa -v- Reginam, FCA, Criminal Appeal No 2 of 1986 dated 21st March 1986, the Court found that a senior magistrate who was going to be called as a witness before a junior magistrate with whom the shared a common chamber was a matter which went to the question of a fair trial and the proper administration of justice. It is not wise to give an exhaustive list of the relevant considerations. Whether a matter goes to the question of fair trial and the proper administration of justice is to be determined on the facts of each individual case.

The question which arises for our consideration is whether the fact that a person who is unrepresented in a trial before a magistrate is a matter which comes within the principles we have enunciated. We consider that s.220 of CPC is not concerned with a right of a person to be represented by a barrister or solicitor under s.188 of CPC. They are two different matters and are not inter-related. Whether a person is tried in, the Magistrate Court or in the High Court such a person is entitled to a lawyer under s.188 of CPC. If he is denied this right, there are ways and means of enforcing that right under the law. An order for preliminary inquiry under s.220 of CPC does not in any way involves the right to representation. In Josua Tuiqaqa -v- Reginam (Supra), the appellant was unrepresented in the Magistrates Court as well as on appeal to the High Court. The Court of Appeal did not treat this as a relevant matter in considering the exercise of discretion of the magistrate under s.220 of CPC.

What the appellant has done in this case was that he applied to the magistrate to conduct a preliminary hearing so as to give the appellant further time and opportunity to get another lawyer to represent him at the trial in the High Court. This is not the purpose of s.220 of CPC. We agree with the learned Chief Justice that the appellant's application under s.220 of CPC was misconceived.

We do not find any error of law in the judgment of the High Court.

We dismiss the appeal and direct that the trial of this case before the Labasa Magistrates Court should proceed without any further delay.

(Appeal dismissed.)