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Chaudhry v State [2002] FJCA 82; AAU0006U.1999S (1 March 2002)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0006 OF 1999S
(High Court Criminal Case No. HAA112 of 1998)

BETWEEN:

RAJENDRA CHAUDHRY
Appellant

AND:

THE STATE
Respondent

Coram: Barker JA, Presiding Judge
Davies, JA

Hearing: 27 February 2002, Suva

Counsel: Mr V.M. Mishra for the Appellant
Mr. J. Naigulevu for the Respondent

Date of Minute: 1 March 2002

MINUTE OF THE COURT

This is an appeal brought under s.22 of the Court of Appeal Act (‘the Act’) against the decision of the High Court on a prosecution appeal against a sentence imposed in the Magistrate’s Court. The appeal was set down to be heard today by a bench of two judges because the President of the Court was of the opinion that it was impracticable to summon a Court of three judges (see ss.6 (1)) and (2) of the Act).

Appellant had pleaded guilty in the Magistrate's Court on 5 November 1998 to a charge of driving whilst disqualified contrary to s.30 (4) of the Road Traffic Act (Cap.176). That enactment requires the Magistrate to impose a sentence of up to 6

months’ imprisonment unless the Court thinks that having regard to the “....special circumstances of the case, a fine would be an adequate punishment for the offence.”

The Magistrate had relied on the submissions of counsel for the appellant which were aimed at avoiding imprisonment for the appellant. These submissions referred to the Appellant’s asthmatic condition and his immediate need at the time of driving to reach a pharmacy to obtain medication. The Magistrate imposed a fine of $100. He did not hear evidence, either oral or by affidavit substantiating the appellant’s claim to special circumstances.

The State appealed to the High Court against the leniency of the sentence. By necessary implication, the prosecution was challenging the Magistrate’s finding of “special circumstances.”

In the High Court on 5th February 1999, Surman J. decided that, because the Magistrate had decided the matter without hearing any evidence and because the facts stated in the Magistrate’s notes were inadequate, the" fairest way of dealing with this appeal was to hear evidence from the Respondent himself which the Magistrate had unfortunately failed to do.” The Judge clearly had power to hear additional evidence on appeal by virtue of s.320 of the Criminal Procedure Code (‘CPC’).

The Judge heard evidence from the Respondent who was cross-examined by the counsel for the appellant. The Judge formed the view, that a claim of ‘special circumstances’ at the time of the offence had not been made out. Accordingly, Surman J. imposed a sentence of 2 months’ imprisonment on the appellant in substitution for the fine and ordered a further period of disqualification from driving. The Judge declined to suspend the sentence.

On 24 February 1999, the appellant filed an appeal in this Court against Surman J.’s decision. Appellant has been on bail even since the date of the High Court decision 3 years ago. According to an affidavit from the appellant’s father, the appellant is currently in Australia receiving medical treatment necessary because of the serious injuries he received whilst being held as hostage for 56 days by the perpetrators of the
George Speight coup of 19 May 2000.

When the appeal was called for hearing before the present members of this Court, counsel for the Respondent advised that Respondent’s view was that a suspended sentence and fine would be an appropriate sentence in all the circumstances.

Such a submission from responsible and experienced counsel would have been very helpful to the Court if this had been a general sentence appeal. Changed circumstances affecting an offender between the times of original sentence and general

appeal can be very material in deciding that appeal The difficulty is that the Act permits a further appeal to this Court from a Magistrate’s decision only where a question of law is
involved (see s.22 (1) of the Act.) Section 22(1A) (b) permits a sentence appeal where a question of law is involved, where, as here, the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence.

The members of this Court, whilst sympathetic in the present circumstances of this appellant, have some difficulty in identifying from Mr. Mishra’s brief opening a viable question of law involved in Surman J’s judgment as would give the Court jurisdiction to ameliorate the sentence in the way suggested by counsel for the Respondent.

In view of the fact that the State had indicated that a suspended sentence and fine would be appropriate, the Court gave counsel the option of proceeding with the appeal hearing or adjourning it until a Court of 3 Judges could be assembled. Mr Mishra for the appellant opted for the second course. Mr Naigulevu did not oppose. The next occasion when 3 Judges will be available will be in the second half of the May 2002 sittings.

The appeal is accordingly adjourned to a date to be fixed at the sessions of the Court commencing 21 May 2002 before a Court of 3 Judges.

Hon. Sir Ian Barker
Justice of Appeal

Hon. Justice Davies
Justice of Appeal

Solicitors:
Messrs. Mishra Prakash and Associates, Suva for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent