IN THE HIGH COURT OF FIJI
AT LABASA
REVISIONAL JURISDICTION

REVIEW NO. 8 OF 1995

IN THE MATTER of Section 323 of the Criminal Procedure Code

AND

IN THE MATTER of Labasa Traffic Case No. 679/95

STATE

- and -

ARVIN CHAND
s/o Hans Raj

Ms Laisa Laveti for the State
Accused present

ORDER ON REVISION

The learned Magistrate, Labasa has requested that I revise his order of 8 June 1995 because the order for disqualification was made in the accused's absence which he says is "not proper".

The accused was on his own written plea of guilty, pursuant to Notice to Attend Court C.P.C. Form No. 9 served on him, convicted and fined $60 to be paid within four weeks and in default 2 months in prison and was further disqualified from holding or obtaining a driving licence for the mandatory period of 12 months.

To assist the Court, the learned State Counsel stated that the proceedings were a nullity and referred the Court to the case of DIRECTOR OF PUBLIC PROSECUTIONS v BISSUN PRASAD (20 FLR p.23) where the circumstances were similar to the one before this Court arising out of the use of "Notice to Attend Court" procedure.

The learned State Counsel quite rightly pointed out to Court the irregularity in the procedure in instituting the case by way of "Notice to Attend Court" (NAC) thereby rendering the proceedings a nullity.

The accused who was present at this hearing said that he has not paid the fine as yet.

The circumstances in which the procedure by way of NAC is not available has been dealt with comprehensively by the Supreme Court (now High Court) in BISSUN PRASAD (supra) in 1974 and recently by FATIAKI J in KISHORE DUTT s/o Ram Dutt and THE STATE (Crim. App. No. 31/95 - 21.7.95).

The relevant sections pertaining to the NAC procedure are sections 80(1) and 80(4) of the Criminal Procedure Code Cap. 21 with this latter section limiting the applicability of the procedure. The said sections read as follows:-

Section 80(1):

"Notwithstanding the other requirements of this Code, it shall be lawful for any police officer to institute proceedings by and to serve personally upon any person who is reasonably suspected of having committed any offence to which this section applies a notice in the prescribed form requiring such person to attend court in answer to the charge stated thereon at such place and on such date and time (not being less than 10 days from the date of such service) as shown on such notice or to appear by barrister and solicitor or to enter a written plea of guilty:....." 

Section 80(4)

"This section shall apply to all offences punishable by fine or by imprisonment with or without a fine, for a term not exceeding 3 months or by disqualification from holding or obtaining a driving licence of by endorsement on a driving licence of particulars of a conviction or disqualification."

Section 4 of the Motor Vehicles Third Party Insurance Cap. 177 under which the accused is fined provides for a fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both fine and imprisonment and also for mandatory disqualification for 12 months unless the Court for "special reasons" thinks fit to order otherwise.

It is clear from the above provisions that the NAC procedure should not have been adopted by the prosecution. The following passage from the judgment of GRANT Acting C.J. in BISSUN PRASAD (supra) is apt:-

"This is not a matter of defective service which may be remedied by the appearance of an accused but is a matter of a prosecution having been instituted by a procedure which was wholly inapplicable. Nor is it a matter of a defect or irregularity in a complaint, charge or notice to attend court which may be waived. It is a fundamental error in the institution of proceedings which goes to jurisdiction. By analogy with an information, the prosecution of the respondent in this instance was instituted by and commenced with the notice to attend court Thorne v. Priestnall [1897] 1 Q.B. 159; Beardsley v. Giddings [1904] 1 K.B. 847 and R. Wakeley [1920] 1 K.B. 638), and just as a court cannot proceed upon a bad information (Hargreaves v. Alderson [1963] Crim. L.R. 46) the Magistrate's Court in the circumstances could not proceed upon the charge preferred by way of a notice to attend court which was ultra vires the enabling section."

In the circumstances for the reasons given the fine that has been imposed and the order for disqualification have not been validly made as the proceedings were a nullity. The conviction is accordingly quashed and the sentence including the order for disqualification is set aside.

D. Pathik
Judge

At Labasa
18 September 1995
HAJ0008O.95B