IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 034 of 2008
Criminal Misc. No: HAM 012 of 2008

BETWEEN:

PITA COSTA
Appellant

AND:

THE STATE
Respondent

Hearing: 11th April 2008
Judgment: 18th April 2008

Counsel: Appellant in person
Mr. S. Qica for State

JUDGMENT

On the 8th of February 2007, the Appellant was convicted of a number of offences in the Nausori Magistrates’ Court. One of them was shop breaking entering and larceny. He was sentenced to 3 years and 6 months imprisonment. He appealed against conviction and sentence out of time, and was granted leave of the High Court to do so.

His principal grounds of appeal are that he was sentenced in his absence which was a breach of section 199 of the Criminal Procedure Code, that he was denied his right to defend himself and that there was a breach of section 29(1) of the Constitution.

This is a very old case. The charges relate to incidents in April 1999. The Appellant was charged with two others, and all three pleaded not guilty. The trial proceeded on the 30th of April 1999. It was part-heard thereafter because of the non-appearance of the 1st and 3rd Accused. The 3rd Accused was the Appellant. Bench warrants were issued. The Appellant appeared in custody on the 24th of March 2000. He appeared thereafter, but his co-accused did not. A further hearing date was abandoned because of the non-appearance of the 1st Accused. The Appellant was granted bail. He then failed to appear until the 20th of June 2003. The presiding magistrate then decided to proceed in the absence of the accused on the ground that they had voluntarily absented themselves, and under section 28(1)(h) of the Constitution.

Despite this ruling, there were further adjournments and the accused continued to absent themselves. Finally, in the absence of all accused the trial proceeded on the 15th of January 2007. Judgment was delivered on the 8th of February 2007. On the basis of the confessions of the accused to the police, they were convicted and sentenced. The Appellant was sentenced to a total of 3 years and 6 months imprisonment.

The Appellant submits that both conviction and sentence were wrong in law. State counsel agrees, saying that under section 28(2) of the Constitution, the power to proceed in the absence of the accused applies only to cases where the charge is not punishable by a term of imprisonment.

Section 199 of the Criminal Procedure Code allows the court to proceed in the absence of the accused if the accused is charged with an offence punishable with imprisonment for less than 6 months and/or a fine not exceeding one hundred dollars. Section 28(1)(h) of the Constitution guarantees a right to be present during one’s trial unless the court is satisfied that the accused was served with process to attend and has chosen not to attend. These provisions were discussed by this court in Messrs. K.W. March Ltd. v. Suva City Council [2002] HAA081/02S and in Jai Nand Kumar v. State [2007] HAA10/06B.

However, the most significant limit to section 199 of the Code, and section 28(1)(h) of the Constitution is provided for in section 28(2) of the Constitution. That section provides:

"Subparagraph (1)(h)(i) does not apply if the offence with which the person has been charged is an offence punishable by a term of imprisonment."

Section 199 of the Criminal Procedure Code must therefore be read down in the light of the constitutional provision. It must now read as follows:

"Notwithstanding the provisions of section 189, if an accused person is charged with any offence not punishable with imprisonment does not appear at the time and place appointed in and by the summons, or by any bond for his appearance that he may have entered into, and his personal attendance has not been dispensed with under section 88, the court may, on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 90."

For the purposes of this appeal, the learned Magistrate could not have proceeded to trial in the absence of the accused for the offences of shop breaking, and unlawful use of motor vehicle. The former is punishable with a term of 14 years imprisonment. The latter is punishable with a term of 6 months imprisonment. It follows that all convictions and sentences of the Appellant in this case, must be quashed. I quash them accordingly.

The alleged offences are not trivial. The total value of the goods alleged to be stolen is $6,409.68. However, this case is now 9 years old. Although the delay was almost entirely of the Appellant’s own making, I consider the delay, for an offence of shop-breaking to be unconscionable. I do not order a retrial. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
18th April 2008