State v Singh [2019] FJMC 24; Criminal Case 62 of 2014 (6 March 2019)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 62/2014

BETWEEN STATE
PROSECUTION /RESPONDENT

AND JAI SINGH

ACCUSED / APPLICANT

Counsel: Mr.Tuifagalele for the Applicant
Ms.Serukai for the Respondent
Date of Hearing: 15^th of February 2019
Date of Ruling: 06^th of March 2019

RULING ON VACATING THE TRIAL IN ABSETIA JUDGMENT

1. The applicant was convicted after a trial an absentia hearing for 2 counts of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009 and sentenced to 03 years imprisonment with a non-parole period of 30 months.
   
2. The applicant filed a motion with a supporting affidavit on 19^th of December 2018 seeking to set aside the judgment and the sentence against him.
   
3. This application was filed pursuant to section 172 of the Criminal Procedure Act No 43 of 2009 (“Criminal Procedure Act”) and the applicant in his affidavit deposed that his failure to come to the court was due to his medical conditions. Further he submitted that he got an arguable defence on merit which this court needs to consider.
   
4. The respondent is objecting to this application and both parties filed their written submissions and also made oral submissions during the hearing.
   
5. The learned state counsel for the Respondent in her submission as well as during the hearing submitted that the accused being aware of this case left the country on 21^st January 2014 and failed to appear in the court without a good cause. Further the counsel submitted that there was no arguable defence on merit to consider. Hence this application has no merit and need to be dismissed.
   
6. The learned counsel for the applicant in his oral submission as well as supplementary written submission argued that the applicant is a sickly person with medical history from 2012 and also he was not served with a charge to appear in the court. As for the arguable defence, the counsel drew the attention of this court to the caution interview of the accused where he has denied these allegations and also given motive behind the complaint.
   
7. Having considered the respective submissions of the parties and the documents presented during the hearing, I would pronounce my ruling in the following manner.
8. The applicant has filed this application to vacate his judgment and sentence pursuant to section 172 of the Criminal Procedure Act which states :

“If the court convicts the accused person in his or her absence, it may set aside the conviction upon being satisfied that the absence was from causes over which he or she had no control, and that there is an arguable defence on the merits.”

9. Hence when a court has convicted an accused person in his absence, it can set aside the conviction only if the court is satisfied that the absence was from causes beyond the control of the accused and he got an arguable defence on the merits.
   
10. The counsel for the applicant has submitted that the applicant was not served with a charge for him to appear in the court.
    
11. But this court proceeded for trial in absentia hearing against the applicant based on the article 14 (2) (h) of The Constitution of the Republic of Fiji 2013.
    
12. Article 14(2) (h) states : Every person charged with an offence has the right to be present when being tried unless unless—

(i) the court is satisfied that the person has been served with a summons

or similar process requiring his or her attendance at the trial, and has

chosen not to attend”

13. Hence a person who has being charged with an offence has the right to be present when tried for the offence. The court can dispense with the attendance only when it is satisfied that after being served with a summons or similar process the accused has chosen not to attend the trial or the conduct of the person is such that the continuation of the proceedings in his or her presence is impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.
    
14. In this case the applicant was granted bail by the police on 08^th January 2014 at the police station and was directed to appear in the court on 17^th February 2014. Hence I find this bail form directing the applicant to appear in the court would fall in to the category of “similar process” requiring him to attend the court.
    
15. As mentioned in para 9 of this ruling, the court can set aside a conviction in absence of the accused only if it is satisfied that his failure to appear was beyond his control and he got an arguable defence on merit. Since the applicant has filed this application he has to satisfy these grounds on balance of probabilities.
    
16. The applicant has left the country whilst on bail on 21^st January 2014 and returned back only on 18^th October 2018 well after 04 years away from the country.
    
17. The counsel for the applicant has submitted due to medical conditions he failed to appear in the court and attached various medical certificates to substantiate his claim.
    
18. I have carefully perused these medical records available to this court. These medical documents shows the applicant is known heart patient with regular visitation to the doctors in Canada. But none of these medical reports disclosed that the applicant was under any medical restrictions to travel back to Fiji to attend to this case. In fact even with his serious medical conditions as alleged by the defence, he has travel backed to Fiji on 18^th October 2018 not because to attend to this case, but for traditional massage (para 4 of the affidavit of the applicant).Hence I find the applicant has failed to satisfy this court that his absence from this case was beyond his control over the past 04 years.
    
19. Now I would consider the defence advanced by the applicant in this case. The applicant has denied committing these offences which is not an arguable defence on merit. During the hearing two victims have given evidence and said the applicant ( Jay Singh) who is a friend has indecently assaulted them on 01^st December 2013 in his shop. The accused in his caution interview also admitted that he was in the shop but denied committing these offences. There is no need to corroborate the evidence of victim in sexual offences (section 129 of the Criminal Procedure Act) and being satisfied with their evidence I convicted the accused for these offences. His mere denial in his affidavit is not sufficient to constitute an arguable defence on merit in this case.
    
20. The counsel for the applicant has also cited the decisions of his Lordship Justice Madigan in Waqavonovono v State [2013] FJHC 145; HAA002.2013 (28 March 2013) and Sami v State [2010] FJHC 173; HAA011.2010 (24 May 2010) to support this application. But both these decisions would not help the applicant in this case.
    
21. In Waqavonovono (supra) the court held that apart from section 172 of the Criminal Procedure Act , the magistrate has no power to set aside a conviction . As the accused was convicted for an amended charge whist the conviction was pending for the original charge, the high court upheld the appeal and the conviction and sentence were quashed.
    
22. In Sami( supra) the court upheld the magistrate court decision of not setting aside the judgment pursuant to section 172 of the Criminal Procedure Act . The High Court said “I was initially troubled by the inconvenience afforded the applicant in the failure of the Registry to have his matter called in his presence, however on reflection it does not influence me in finding that his grounds of appeal are not made out. With his obvious indifferent attitude to the earlier hearings, marked by his failure to attend at least 5 of them, his attempt to make an issue of his absence from the formal proof hearing smacks of a cynical, tactical and strategic appeal.”
    
23. In Sami ( supra) even though the accused failure to appear on the hearing was due to some fault of the registry , due to his repeated absence which delayed the case the court was not prepared to grant the relief prayed by the accused . Even though the counsel has cited this decision, in fact it would support the respondent position as the applicant has failed to appear for more than 04 years in this case which substantially delayed the case involving child victim of sexual assault.
    
24. Having considered the above mentioned reasons, I find the applicant has failed to satisfy that his absence of 04 years from this case was due to causes beyond his control and also he has failed to show arguable defence on merit.
    
25. Accordingly I find there is no merits in this application and dismiss this.
    

Shageeth Somaratne

Resident Magistrate