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Sami v State [2010] FJHC 173; HAA011.2010 (24 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 011 OF 2010

BETWEEN:

JAGANNATH SAMI
Appellant

AND:

STATE
Respondent

Mr. S. Krishna for the Appellant
Miss M. Fong for the Respondent

Date of Hearing: 12 May 2010
Date of Judgment: 24 May 2010

JUDGMENT

Background

[1] The appellant was charged with one count of failure to obey road signs contrary to section 69(2) and 87 of the Land Transport (Traffic) Regulations 2000 on the 21st November 2008.

[2] On the 13th January 2009 he pleaded not guilty and said he would exercise his right to be represented by Counsel. The case was then "mentioned" and adjourned until the 24th April 2009 when it fell victim to the disorganization in the listings following the abrogation.

[3] It was then further adjourned six times until the 16th February 2010 when in the absence of the accused, one witness was called to "formally prove" the charge. The Magistrate thereupon found that that the accused had committed the offence beyond reasonable doubt, convicted him and fined him $300.

The Appeal

[4] The appellant filed a timely appeal to this Court on the 17th March 2010 against conviction and sentence. His grounds against conviction being (as amended through his Counsel):

(i) The Magistrate erred in not setting aside his judgment.

(ii) That the Magistrate erred in not having the case listed.

(iii) That the Magistrate erred in hearing the charge in the appellant’s absence.

(iv) That the Magistrate erred in failing to ensure proper discovery on the part of the Police.

4(b) The grounds of appeal against sentence were:

(i) That it was manifestly harsh and excessive.

(ii) Breach of Court Orders for disclosures (sic).

4(c) The appellant asks in addition for costs.

[5] On the date of conviction, the 16th February 2010, the accused was present at Court. His case was not listed in the cause lists but on enquiry at the Registry he was told his case would be called in Court No. 1. He waited in Court No. 1 where his case was not called. Further enquiries at the Registry revealed that his file could not be located and that he could leave and would be contacted with a new hearing date. However, unbeknown to the appellant his case was called in Court No. 1 after lunch when of course he was not present, and he was convicted. The appellant had befriended a Police Inspector on duty in the Court and after the conviction, this Inspector told the Magistrate that the accused had been present in the morning and suggested that the "judgment" be set aside which the Magistrate quite properly refused to do.

[6] In his written submissions, Counsel for the Appellant seeks to rely on section 172 of the Criminal Procedure Decree 2009 which reads as follows:

Section 172 Conviction in absence of accused may be set aside.

"If the Court convicts the accused person in his or her absence, it may set aside the conviction upon being satisfied that the absence was from causes over which he or she had no control, and that there is an arguable defence on its merits."

As Counsel for the State points out, that provision is conditional on the satisfaction of two tests: (i) that the absence was from causes over which the accused had no control and (ii) that there is at arguable defence on the merits.

[7] Counsel for the Appellant submits that the accused made every attempt to be present for the hearing of his case on the 16th February 2010 but was thwarted by the Registry which had apparently misplaced his file. Counsel conceded that he had made no submissions as to the arguable merits of the case, save as to say that despite repeated requests his client was never served with disclosures.

[8] Counsel for the Respondent, while raising the need to satisfy the two prong test in section 172, submitted that the unfairness occasioned to the accused on the 16th February 2010 led the State to concede the appeal, although Counsel was far from confident in that concession.

Analysis

[9] In looking at all aspects of this appeal, it is the Court’s view that it would be wrong of the State to concede this appeal. While it is of course commendable and responsible of the State to concede appeals which are meritorious, in cases of doubt the Court is of course not bound by an ill considered concession.

[10] On the 12 occasions that this matter was called before the 12th February 2010, the Court Record shows that the accused was absent on five occasions, thereby causing unnecessary delay to the proceedings.

[11] The hearing on the 12th February 2010 was set for "Formal Proof", a common procedure in the hearing of traffic cases and when it is normal for the accused persons not to be present. The Magistrate quite properly exercised his discretion to find the case proved beyond reasonable doubt, and so convicted and fined.

[12] The treatment of the accused on the 12th February was most unfortunate in that he did endeavour to be present, nevertheless it is difficult to imagine how he would have been able to mount an "arguable defence" to an offence of strict liability. There was no reason why the Magistrate should have set aside his judgment and for the Police Inspector to try to intervene was most improper.

[13] Counsel for the Appellant refers me to the case Matthew Lindsay Hodder v R 33 A Crim R from the Court of Criminal Appeal, NSW. That was an appeal by way of "case stated" in which the Court held that relevant provisions of the Justice Act (1902) (NSW) permitted the Magistrate to convict and sentence in the absence of the defendant. There was no risk of injustice inasmuch as the hearing would in itself have been a validly constituted hearing. It is difficult to understand how this case assists the appellant in taking the appeal forward.

[14] It is not normal for an accused in a traffic offence case to be provided with disclosures and I find that no prejudice has been occasioned to him in not being served. The only document used in the proceedings was a Fiji Police Statement Form which is included in the record. Counsel criticized the informal nature of the document but the point is that it provides sufficient information to corroborate the evidence of the police witness.

[15] I was initially troubled by the inconvenience afforded the applicant in the failure of the Registry to have his matter called in his presence, however on reflection it does not influence me in finding that his grounds of appeal are not made out. With his obvious indifferent attitude to the earlier hearings, marked by his failure to attend at least 5 of them, his attempt to make an issue of his absence from the formal proof hearing smacks of a cynical, tactical and strategic appeal.

[16] The appeal against conviction is dismissed.

Sentences

[17] The maximum penalty for this offence is 3 demerit points, a fine of $500 and/or a term of imprisonment for 3 months. The fine imposed by the Magistrate was well within the range prescribed by the legislation and cannot therefore be said to be harsh or excessive.

[18] The appeal against sentence is also dismissed.

Paul K. Madigan
Judge

At Lautoka
24 May 2010