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State v Waqanivalu [2004] FJHC 477; HAC0032.2004L (8 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0032 OF 2004L

THE STATE

V

SENITIKI WAQANIVALU

Mr. N. Nand for the State
Mr. S. Sharma for the Accused

Hearing: 17 September 2004
Ruling: 8 October 2004

RULING

On the 1^st October 2004, I ordered this matter be remitted to the Magistrates Court for hearing and that I will publish my reasons which I now do.

The accused on the 18^th August 2004 appeared before the Learned Magistrate at Lautoka when the court record shows that the charge was read and understood.

The record shows that the accused elected for the charge of house breaking, entering and larceny to be dealt with in the Magistrates Court.

The accused entered a plea of not guilty.

The Learned Magistrate ordered the transfer of the case to the High Court, notwithstanding the election by the accused (as to which see later) to have the matter dealt with in the Magistrates Court.

The Learned Magistrate said “...and accused has already been remanded at Natabua in Case No. 537/04 – (murder).”

It is assumed that this notation relates to the question of bail only.

No reasons are given by the Learned Magistrate for ordering the transfer to the High Court.

Section 220 of the Criminal Procedure Code enables a Magistrate to transfer proceedings to the High Court if it appears to him that the case is one that ought to be tried by the High Court.

Section 223 of the Criminal Procedure Code is a general section enabling a Resident Magistrate to transfer any charge or proceeding to the High Court. Prior to its amendment in 2003 by Act No. 13 of 2003, the section enabled any magistrate to commit any person to the High Court for trial.

The provisions require the Learned Magistrate to form the opinion that the matter ought be tried in the High Court.

It requires a consideration of issues such as the serious nature of the offence and the likely penalty that might be imposed.

As no reasons are given by the Learned Magistrate, it is not possible to determine the matters considered by him and the basis of the opinion that he formed.

The offences that are “electable offences” are set forth in the Schedule 2, The Electable Offences Decree No. 22 of 1988. The Decree provides that only those offences listed in the Schedule can be subject to election by the accused for trial in the High Court (Clause 3). The Decree amends the Criminal Procedure Code as necessary (Clause 6).

By virtue of the decision of the Fiji Court of Appeal in Attorney General of Fiji, Minister for Sugar Industry v Silimaibau & Anr – Civil Appeal No. ABU0050 of 2003S, the Decree was validly made and remains in force. There is therefore no right of an accused to elect to have this matter dealt with by the High Court.

The need for a considered and reasoned opinion is even more so when there is no right of election.

The failure of the Learned Magistrate to act judicially, must result in the transfer order being of no effect and accordingly, the matter is remitted to the Learned Magistrate for hearing.

JOHN CONNORS
JUDGE

At Lautoka
1 October 2004