Anisimai v State [2009] FJSC 3; CAV0006.2008S (12 February 2009)

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Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Counsel: Mr A.K. Singh for the Petitioner
Mr P. Bulamainaivalu for the Respondent

[1] The principal issue raised by this petition for special leave to appeal is whether the petitioner was denied what he claims is his statutory right to a preliminary inquiry before he was tried in the High Court for indictable offences. If the petitioner establishes that he has been denied that entitlement, a further question arises, namely whether his convictions for the offences should be set aside by reason of the failure of the State to follow the prescribed pre-trial procedures.

[2] The petitioner was convicted on 1 June 2006, after a trial in the High Court, of one count of robbery with violence, contrary to s.293 (1) (b) of the Penal Code, Cap.17, and one count of larceny, contrary to ss.259 and 262 of the Penal Code. The count of robbery with violence related to the theft of F$525,000 in cash, the property of the ANZ Bank, on 6 December 2002. The count of larceny related to the theft on 5th December 2002 of a number plate subsequently used in the robbery. The petitioner was sentenced to a total of 14 years imprisonment for the two offences of which he was convicted.

[3] The petitioner filed a notice of appeal with the Court of Appeal challenging both his convictions and his sentence. However, he was subsequently refused leave to appeal by a single Judge of that Court. The petitioner’s case perhaps was not advanced by his escape from custody (and subsequent recapture) prior to the hearing of what was treated by the Judge as an application for leave to appeal.

[4] The petitioner then lodged an application with the Court of Appeal seeking an enlargement of time to appeal against his convictions and sentence. The Court of Appeal held that the single Judge had erred in concluding that the petitioner was limited to an appeal on a question of law alone. Nonetheless, the Court held that the proposed appeal had no merit, either in law or on the facts. It therefore refused the petitioner leave to appeal out of time.

[5] The petitioner has sought special leave to appeal to this Court from the judgment of the Court of Appeal. His petition identified a number of grounds of appeal. However, the only ground elaborated in oral argument on the petitioner’s behalf was that he had elected to be tried in the High Court on the charge of robbery with violence and, having so elected, was entitled under the Criminal Procedure Code, Cap.21 ("CPC") to a preliminary inquiry before he could be validly tried on that charge in the High Court. Since no such preliminary inquiry was conducted before his trial, so the petitioner argued, his convictions could not stand and should be set aside by this Court.

[6] The starting point in order to follow the petitioner’s submissions is the Electable Offences Decree 1988 ("the Decree"). Section 3 of the Decree provides that –

"No person charged with an offence under the Penal Code shall be entitled to elect to be tried before the High Court unless the offence with which he has been charged is an electable offence."

[7] Section 3 of the Decree appears to assume that a person charged with an electable offence is entitled to elect to be tried before the High Court, even if the prosecution initially proceeds against that person in the magistrates’ court. Both the petitioner and the State appeared to accept in oral argument that s.3, despite its rather curious structure, confers an entitlement on an accused person to elect to be tried in the High Court if he or she is charged with an electable offence. Be that as it may, the provision clearly does not mean (contrary to what seems to have been suggested in argument and in the judgement of the Court of Appeal that a person charged with an electable offence in the High Court is entitled to elect to have the offence tried in a magistrate’s court.

[8] Section 3 of the Decree should be read with the relevant provisions of the CPC. Part VII of the CPC, prior to the enactment of Criminal Procedure Code (Amendment) Act 2003 ("the Amendment Act"), contained provisions relating to the committal of an accused person for trial by what was then described as the Supreme Court (now the High Court). Section 224 of the CPC, which was in Part VII, provided as follows:

"Whenever any charge has been brought against any person of an offence not triable by a magistrates’ court or as to which the magistrate is of opinion that it ought to be tried by the Supreme Court or where an application in that behalf has been made by a public prosecutor a preliminary inquiry shall be held, according to the provisions hereinafter contained, by a magistrates’ court, locally and otherwise competent".

[9] It will be seen that if s.3 of the Decree has the effect attributed to it by the parties, s.224 would apply where an accused person, charged with an electable offence in the magistrate’s court, elects to have the charge heard by the High Court. This would be so because the charge relating to such an offence would no longer be "triable by a magistrates’ court" for the purposes of s.224 of the CPC.

[10] Section 220 of the CPC, also in Part VII, provided (before the Amendment Act) that if, before or during the course of a trial in a magistrates’ court, it appears to the magistrate that the case is one which ought to be tried by the Supreme Court, or before the commencement of the trial the prosecutor makes an application that the case should be so tried, the magistrate is not to proceed with the trial. In lieu thereof, the magistrate is to hold a preliminary inquiry in accordance with the detailed procedures laid down by Part VII of the CPC. It follows that if the prosecutor makes an application under s.220 of the CPC for the case to be tried in the High Court, s.224 of the CPC applies to the proceedings. Accordingly, under the pre-Amendment Act provisions if the prosecutor applies under s.220, the magistrates’ court is obliged to conduct a preliminary inquiry.

[11] As we have noted, prior to the Amendment Act, Part VII of the CPC made elaborate provision for the conduct of a preliminary inquiry by the magistrates’ court. It is not necessary to recount the details of the statutory scheme. It should be noted, however, that s.226(2) of the CPC expressly permitted an accused person to question each witness produced against him or her by the prosecution and required the witness’s answers to form part of the depositions.

[12] The Amendment Act came into force on 13 October 2003. Among other things, the Amendment Act repealed Part VII of the CPC and substituted a new Part VII (now ss.223-236).

[13] The new s.223 of the CPC provides that a magistrate may transfer any charge or proceedings to the High Court. Section 224 states that an accused person shall not be subject to a preliminary inquiry or to committal proceedings prior to the transfer to the High Court for trial. The Amendment Act has also removed all references in the CPC to a preliminary inquiry (or to similar expressions). The evident intention, subject to the effect of the transitional provision to which we refer in [16] below, is to remove accused’s entitlement to a preliminary inquiry prior to a trial in the High Court.

[14] Consistently with that evident intention, s.226 of the CPC now provides as follows:

"If an accused person has ... pleaded not guilty to an electable offence in respect of which the accused has elected a trial in the High Court, the magistrate, shall, forthwith, order the transfer of the charges or proceedings of the High Court ... for trial."

[15] Section 15 of the Amendment Act is the transitional provision. It provides as follows:

"This Act does not apply to charges for electable offences pending in the magistrate’s courts before the commencement of this Act except where the accused person consented to his or her case being transferred to the High Court under the new section 226."

It would seem that the word "consented" should be read as "consents" since an accused person could not consent to the proposed transfer under the new s.226 until after the Amendment Act had come into force.

[16] The petitioner was arrested and charged on 6 January 2003 with the offences of which he was ultimately convicted. (The charges were amended before or at the trial, but nothing turns on this.)

[17] The petitioner was convicted on a related charge in January 2003 and sentenced to a term of imprisonment. He remained in custody until his release in November 2005.

[18] On 26 November 2003, the petitioner appeared without legal representation before a Magistrate. His co-accused also appeared in the magistrates’ court on this occasion, but was legally represented. The petitioner pleaded not guilty to the charges against him and elected to have the charges tried by the High Court, rather than the magistrates’ court. The co-accused, according to the record of proceedings, elected to be tried by the magistrates’ court although (as has been pointed out) that "election" does not appear to reflect accurately the operation of the relevant legislation. In any event, the co-accused indicated that he opposed the State’s foreshadowed application under s.220 of the CPC for the "matters to be remitted to the High Court". The proceedings were stood over until 1 December 2003.

[19] After a series of adjournments, the proceedings came before a different Magistrate on 21 January 2004. Both accused were unrepresented. The record of the proceedings states that the Court "Explains the new Criminal Procedure Code" clearly enough so as ... a reference to the changes effected by the Amendment Act. The petitioner and his co-accused requested two weeks to consider whether they would consent to the matter being transferred under "new Criminal Procedure Code provision". This seems to have been a reference to the new s.226 of the CPC.

[20] The proceedings returned to the same Magistrate on 4 February 2004. Again, both the petitioner and his co-accused were unrepresented. The record of proceedings states as follows:

[21] On 28 April 2004, the proceedings came before another Magistrate. Both accused continued to be unrepresented. The record states the following:

"PROSECUTION	We are ready to transfer the case to High Court.
COURT:	To [the petitioner and co-accused]
	Do you have any objection that this matter to be tried at High Court?
	[The petitioner] – No.
	[Co-accused] – No.
COURT:	Matter to be transferred to High Court.
COURT:	Adjourned 12/5/04."

[22] It was common ground that the petitioner was the subject of a pending charge in the magistrates’ court for an electable offence, namely robbery with violence, before the commencement of the Amendment Act. Accordingly, there was no dispute that the first part of s.15 of the Amendment Act was satisfied. Thus the CPC, as amended could not apply to the petitioner unless the terms of the exception to s.15 were satisfied.

(i) The terms of the exception to s.15 were not satisfied in this case because the petitioner, on 4 February 2004 had refused to consent to the proceedings against him being transferred to the High Court pursuant to the new s.226 of the CPC. Nothing changed at the hearing on 28 April 2004. The record of the proceedings on that day merely indicates that the petitioner did not object to the prosecutor’s announcement or that he was ready to transfer the matter to the High Court. On the basis of the record, it could not be concluded that the petitioner intended to resile from his previous refusal to consent to the transfer. There was therefore no basis for concluding that he had given his informed consent to the transfer of the proceedings in the manner contemplated by s.15 of the Amendment Act.

(ii) Since the Amendment Act did not apply to the charge of robbery with violence against the petitioner he was entitled to rely on his election to be tried in the High Court in accordance with s.3 of the Decree. The petitioner had made that election on 26 November 2003 and did not alter his position after that date.

[24] The Court of Appeal addressed but dismissed the argument put forward by the petitioner in this Court. In doing so, the Court of Appeal discussed to its earlier decision in Abhay Kumar Singh v State, Criminal Appeal No. AAU0009 of 2004S, in the following terms:

"[21] In that case, the appellant faced three charges of perverting the course of justice. The charges were filed in the Suva Magistrate’s Court on the 25th of July 2003. The [Amendment Act] came into force on the 13th of October 2003. The offences were non-electable for the accused. However, the Director of Public Prosecutions applied for High Court trial under sections 220 and 222 of the [CPC]. The appellant objected, but the case was nevertheless transferred to the High Court.

[22] The appellant appealed against the transfer, firstly to the High Court, then to this court. His principal ground of appeal was that the transfer could not have been made without his consent. The law before and after the new procedure was canvassed at length both in the High Court and the Court of Appeal.

‘We conclude that [s.15] creates an exception from the application of the remainder of the Amendment Act ... We consider that this is an understandable exception in that before the Amendment Act came into effect a person charged with an electable offence has a right of election as to the mode of trial and the right to a preliminary hearing if he elected a High Court trial. Parliament by this transitional provision has preserved that right.’"

[25] The Court of Appeal then observed that Singh v State was in point in relation to the present petitioner’s argument:

"[The petitioner] was charged with an electable offence (robbery with violence), before the commencement date of the Amendment Act. He elected High Court trial. The prosecution made an application for the remaining charges to be similarly tried in the High Court. This appears to be because the [co-accused] had elected magistrates’ court trial. The presiding magistrate explained the new transfer proceedings to the applicant and his co-accused. They refused to consent. A preliminary inquiry date was set. On the day of the inquiry the petitioner consented to the transfer. In doing so, he waived his right (preserved by virtue of [s.15]) to a preliminary inquiry. The fact that he had earlier refused consent suggests that this waiver was informed and unequivocal. There was no breach of the Act and there is no merit in that ground of appeal".

[26] The critical finding by the Court of Appeal in the present case was that the petitioner, at the hearing held on the 28 April 2004 in the magistrates’ court, consented to the transfer of the proceedings against him to the High Court in the manner contemplated by s.15 of the Amendment Act. Unless that finding is overturned in this Court, the factual foundation for the petitioner’s contention that he was improperly denied a preliminary inquiry before his trial in the High Court is removed.

[27] The petitioner submits that the finding of the Court of Appeal should be set aside. He argues that the evidence before the Court of Appeal suggests, contrary to that Court’s findings, that the petitioner never gave his informed consent to the transfer of the proceedings pursuant to s.15 of the Amendment Act.

[28] The same evidence that was before the Court of Appeal is before this Court. The evidence is all in documentary form and its evaluation does not depend on any question of credit, nor on the evaluation of oral evidence. Accordingly, this Court in as good a position as the Court of Appeal to determine the factual issue, although appropriate respect should be paid to the Court of Appeal’s finding: Warren v Coombes (1979) 142 CLR 521.

[29] In the absence of transcripts or detailed records of the various proceedings before the magistrates’ court, it is necessary to rely on the brief notes prepared or approved by each magistrate. Of necessity, given their brevity, the records are equivocal in certain respects. However, it is clear from the record, as the Court of Appeal concluded, that on 21 January 2004 the presiding Magistrate explained the "new Criminal Procedure Code" to the petitioner and his co-accused. The appropriate inference to be drawn from the record is that the Magistrate’s explanation on this occasion extended to the operation of s.15 of the Amendment Act and its relationship to the new s.226 of the CPC. The Magistrate’s notes states specifically that the petitioner requested two weeks to consider whether he should consent under "the new ... provisions". Clearly the request related to a proposed transfer of the proceedings pursuant to s.15 of the Amendment Act, when read together with s.226 of the CPC.

[30] That the petitioner understood the position under the new legislation (as the Court of Appeal inferred) is strongly supported by his refusal on 4 February 2004 to consent to the transfer of the proceedings. On that date, he elected in favour of what was described in the record of proceedings, apparently inaccurately, as a "Paper Preliminary Inquiry".

[31] It is true that, as the petitioner submits, the record of the proceedings in the magistrates’ court on 28 April 2004 is both sparse and somewhat ambiguous. The prosecutor is recorded as stating that he is ready to transfer the case to the High Court. It is not entirely clear why the prosecutor made such a statement, although he may well have intended simply to request the petitioner and his co-accused to re-consider their earlier refusal to consent to a transfer of the proceedings. The petitioner is recorded as having been asked whether he objected to the transfer rather than whether he affirmatively consented, as the legislation appears to contemplate. There is nothing in the record of that day’s proceedings to indicate that the Magistrate specifically explained that the effect of a transfer of the proceedings would be to require the petitioner to forego his right to a preliminary inquiry.

[32] In determining the appropriate inferences to draw, it is necessary to place the record of the proceedings of 28 April 2004 in context. The petitioner received an explanation on 21 January 2004 of the new provisions. It is certainly open to infer (as the Court of Appeal did) that this explanation had not been forgotten by the petitioner at the hearing on 28 April 2004. Further, it is difficult to understand why the petitioner would have been asked on that date whether he objected to the transfer of the proceedings to the High Court, unless the intention was to ensure that he consented and thereby to satisfy the terms of the exception s.15 of the Amendment Act. There is no reason to suppose, from the available material, that the petitioner was misled in any way at the hearing on 28 April 2004, bearing in mind that the operation of the new provisions had previously been explained to him.

[33] The petitioner’s challenge to the findings of the Court of Appeal is weakened further by the contents of an affidavit sworn by him in support of his application for leave to appeal to this Court. The affidavit was read on his behalf and formed part of the evidence before the Court of Appeal (and this Court). It is significant that the petitioner was legally represented at the time he swore the affidavit.

[34] The affidavit contains a number of obvious factual errors. However, it asserts in bald terms that the petitioner had no idea how the criminal proceedings had come to be transferred to the High Court. That assertion is very difficult to reconcile with the record of the proceedings in the magistrates’ court. More importantly for present purposes, the petitioner failed to take advantage of the opportunity to explain in his affidavit what had happened at the various hearings in the magistrates’ court, in particular his understanding of what occurred on 28 April 2004. Although the Court of Appeal did not refer in its judgment to the petitioner’s affidavit, his failure to provide any details that might have rebutted inferences available from the record of proceedings supports the findings made by the Court of Appeal.

[35] For these reasons, this Court is unable to accept that the findings made by the Court of Appeal should be disturbed. It follows that the factual foundation for the petitioner’s submissions is wanting and those submission must be rejected.

[36] In the light of this conclusion, it is not necessary to consider whether the failure to hold a preliminary inquiry prior to the petitioner’s trial in contravention of statutory requirements would justify quashing the petitioner’s convictions. It should be said, however, that the petitioner’s argument on this question of law is not without force.

[37] An act done in contravention of a statutory prohibition or of statutory requirements is not necessarily invalid or of no effect. Whether the act (in this case a trial) is of no effect depends on whether the legislation demonstrates an intention to invalidate an act that does not comply with the statutory conditions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 389-390 [91], [93], per McHugh, Gummon, Kirby and Hayne JJ; R v Soneji [2005] UKHL 49; [2006] 1 AC 340. However, the courts tend to take a strict view of statutory requirements that must be satisfied before a person can be put on trial for a serious criminal offence. As Lord Bingham of Cornwall observed in R v Clarke [2008] EWCA Civ 303; [2008] 2 All ER 665, at 677[17]:

"Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the State exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place."

See, to the same effect R v Duffield, 1 October 1992, NSW Court of Criminal Appeal, BC9203066, at 2-3, per Kirby P (with whom Wood and Sharpe JJ agreed).

[38] In R v Clarke, the House of Lords held that the absence of a signed indictment at the outset of a trial and throughout most of the proceedings had the legal effect of invalidating the trial. The convictions at the trial were set subsequently set aside notwithstanding that the defendants had not complained of the procedural defect. A similar conclusion was reached by a five member New South Wales court of Criminal Appeal in R v Janceski (2005) 223 ALR 500.

[39] The legislation considered in R v Clark and R v Janceski was not in the same terms as the legislation relating to preliminary inquiries in force in Fiji at the time of the petitioner’s trial. Further, the reasons given by the House of Lords and the Court of Criminal Appeal emphasised the historical role played by a bill of indictment and by the signing of a bill before the trial. Nonetheless, the committal proceeding historically has its own importance in criminal procedure as Dawson J pointed out in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 11ff (per Mason CJ, (Brennan and Toohey JJ agreeing). In addition, the CPC (in its unamended form) when read with the Decree, perhaps lends itself to the construction attributed to it by the petitioner in the present case. However, as we have explained, it is unnecessary to express a concluded view on this question.

[40] The petitioner advanced other arguments in his written submissions, but his counsel did not develop them in oral argument. In any event, they are without substance.

[41] The petitioner has not satisfied any of the criteria for the grant of special leave to appeal to this Court specified in s.7 (2) of the Supreme Court Act 1988.

Solicitors:
A.K. Law, Nausori for the Petitioner
Office of the Director of Public Prosecution, Suva for the Respondent

Supreme Court of Fiji

Anisimai v State [2009] FJSC 3; CAV0006.2008S (12 February 2009)