| Fiji Islands - Ashok Kumar v The State - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL APPEAL NO. 6 OF 1989
BETWEEpan>
1. ASHOK KUMAR
2. DHIREN CHAND
3. ABHIMANNU
Appellants
AND:
THE STATE
Respondent
Mr. G. P. Shankar for the Appellants
Ms. N. Shameem and Ms. L. Laveti for espondent
Date of Hearing: 4th & 12th March, 1992
Date of Delivery of Judgment: 13th March, 1992
JUDGMENT OF SIR MARI KAPI JA
At the hearing of this appeal, counsel for the appellants sought to argue paragraph 9 of the Notice of Appeal before arguing other
grounds on the basis that if the Court accepts his submission on this ground, it would dispose of the whole appeal. Counsel for the
respondent agreed to this course being adopted.
Ground 9 is as follows:-
"Erred in procedural matter to wit in discharging two duly sworn assessors without reference or submission from the defence
or the prosecution and swearing in therefore two alternativessssessors to continue with the trial."
The facts which form the basis of this argument are these.
On the 6/2/89, the 3 appellants were arraigned on a charge of murder and they all pleaded guilty. The case was adjourned for trial
later in the list.
The matter came on for hearing again on the 6/3/89 and after having read and explained the information, copies were given to the
assessors. At this hearing one assessor was discharged. The case was adjourned to 7/3/89.
The matter resumed on 8/3/89 and each of the accused again pleaded not guilty to the information and the assessors were sworn in
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- Shena Blam - S Patel
At this hearing the judge explained preliminary matters and legal points record shows that Mr. Babu Babu Singh, the prosecutor sought
to make certain legal submissions in the absence of the assessors. The record does not show whether the assessors were released at
this point. We will assume that they were released.
What subsequently took place was a trial within a trial as the defence had sought to object to the admissibility of statements of
the appellants as they were not made voluntarily.
This trial continued on 9/3/89, 13/3/89, 14/3/89, 15/3/89, 16/3/89, 20/3/89, 21/3/89, 23/3/89, 29/3/89, 30/3/89, 3/4/89.
Written submission were tendered during argument on last mentioned date. The ruling was handed down on the 5th of April 1989. The
statements were admitted.
The case resumed on 10/4/89 and at this hearing, Chand Rekha wanted to be discharged so he was discharged accordingly. At this point
in time, there was only one of the three assessors originally sworn. Counsel for the appellants submitted that the trial cannot continue
with one assessor and a new trial should be held with fresh assessors. The trial judge dismissed this submission.
Counsel for the appellants has submitted that under S.285, if two assessors are discharged, the trial should be stayed and a new
trial should be held with the aid of the fresh assessors. He submitted that by not following the dictates of this statutory provision,
there is a breach of this provision.
Counsel for the respondent has submitted that trial had not commenced because the prosecution has not yet led evidence and that all
that has taken place is trial within a trial.
It is clear from S.285 that the trial must have commenced before this provision can be applicable. Under S.282 of CPC, if the accused
pleads "not guilty", the Court shall proceed to choose assessors, and then try by the case.
This took place on the 6/3/89. At this hearing, one assessor was discharged. This could not have prevented trial because there were
two assessors left. Although there is no record of them been sworn on this date, they were sworn on 8/3/89.
The case resumed again on 10/4/89. At this date there was only one assessor. It is clear that section 285 demands that there should
be a new trial.
We have recalled counsel to argue the question of whether the breach of S.285 necessarily results in a nullity and whether or not
the breach can be cured by other provisions of the CPC.
Sir Mari Kapi
JUSTICE OF APPEAL
Aau0006u.89s
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