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Drova v State [2012] FJHC 1304; HAA23.2012 (31 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA23 of 2012

BETWEEN:

PENIAME DROVA
Appellant

AND:

STATE
Respondent

BEFORE: Hon. Mr. Justice Paul K. Madigan

Counsel: Mr. S. Nandan for the Appellant
Mr. Y. Prasad for the State

Dates of Hearing: 17 & 24 August 2012

Date of Judgment: 31 August 2012

JUDGMENT
TRIAL IN ABSENTIA

1. On the 20th March 2012 in the Magistrate's Court at Nasinu, the appellant was convicted after trial in absentia of one count of assault occasioning actual bodily harm. He was sentenced on the same day to a term of immediate imprisonment for 6 months.

2. The facts elicited at trial were that the appellant being a soccer player for the Rewa Soccer team was residing in a downstairs flat in Nakasi while the victim who was caretaker of the flats was residing in a flat upstairs. On the 21st October 2010 all of the Rewa team were downstairs "at camp" and were drinking beer. The caretaker, knowing that this was not allowed called "the boss" to inform him of the situation. The appellant was frustrated at the caretaker's action and assaulted him. The victim was knocked unconscious, had bruises and was swollen. He regained consciousness only after 10 to 15 minutes. The victim was medically examined and was found to have bruising on his left ear. The appellant was interviewed under caution where he admitted punching the victim, holding his neck and pushing him down and knocking him unconscious for 10-15 minutes. There had been no attempt by the appellant to reconcile with the victim up to trial.

3. The maximum penalty for this offence is five years' imprisonment. It is a summary offence. It was held by Shameem J in Tugalala [2008] FJHC that the tariff appeared to be from an absolute discharge to 12 months' imprisonment. It is the extent of the injuries that are in large part determinative of the point to take in that range. The learned Magistrate took a starting point of 6 months imprisonment and given that there was no remorse and that the victim was knocked unconscious, he declined to suspend the sentence.

4. The trial of the appellant was conducted in his absence. He was present on the 3rd May 2011 when he pleaded not guilty and when he was given full disclosures and told that the hearing date for his trial was to be on the 19th March, 2012. On that day he was absent without any advice or reason given to the Court. All of the prosecution witnesses were present and the Magistrate granted the prosecution's application that he be tried in absentia.

5. The appellant now appeals his conviction and sentence on the following grounds:

1. that the learned Magistrate erred in law and fact in allowing the prosecution's application for trial in absentia;
   
2. that the learned Magistrate erred in law and fact in sentencing the Appellant in absentia;
   
3. the learned Magistrate erred in law and fact in failing to take into consideration relevant matters when sentencing the Appellant in absentia, and in particular:
   
   • (a) section 246(3) of the Criminal Procedure Decree;
     
   • (b) the appellant being unrepresented;
     
   • (c) the appellant not being informed of his right to appeal at the time of sentence.
     
4. the sentence is manifestly harsh and excessive and wrong in all the circumstances of the case.
   

6. In an affidavit filed in the Court below for an application for bail pending appeal, the appellant's wife deposed that he had gone to New Zealand before the hearing to represent Fiji in an international soccer tournament and that playing soccer is his only means of income. The wife was to tell the Court that he would not be present at his trial but she did not do so.

7. By the terms of s.171(1) of the Criminal Procedure Decree 2009 a Magistrate's Court may proceed to hearing of a summary offence in the absence of an accused. The section reads:

"s.171(1) If at the time or place to which the hearing or further hearing is adjourned –

(a) the accused person does not appear before the Court which has made the order of adjournment, the Court may, (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and

(b) if the complainant does not appear the Court may dismiss the charge with or without costs.

(2) If the accused person who has not appeared is charged with an indictable offence, or if the Court refrains from convicting the accused person in his or her absence, the Court shall issue a warrant for the apprehension of the accused person in his or her absence, the Court shall issue a warrant for the apprehension of the accused person and cause him or her to be brought before the Court."

8. This being a summary offence, there is no reason why the appellant should not have been tried in absentia, especially when in the knowledge of the hearing date he deliberately absented himself by leaving the jurisdiction. By doing so he is waiving all rights to be heard at the hearing.

9. This ground of appeal has no merit and it fails.

10. The appellant relies on s.167 of the Criminal Procedure Decree in that by subsection 2(a) it is stipulated that (in the absence of the accused) the court may "proceed to hear and determine the case in the absence of the accused." The appellant submits that this does not apply to sentence but only to a finding of guilt or otherwise and that therefore the accused must be present for sentencing.

11. Such an argument is misconceived. A Magistrate will "determine" a case before him by bringing it to an end and a criminal case is not ended or "determined" until sentence has been passed where there has been a conviction.

12. This ground of appeal fails.

13. The appellant submits that the learned Magistrate failed him on 3 grounds:

1. that he was not advised of his right of appeal, being unrepresented;
   
2. that he was unrepresented; and
   
3. that he was not told of his right to appeal at the time of the sentence.
   

14. Why the appellant by his Counsel has broken up this one ground of appeal into three separate limbs is a mystery: the sole ground is that the appellant not being represented at trial and at his sentence was not advised of his right to appeal.

15. Section 246(3) of the Criminal Procedure Decree reads:

"where any sentence is passed or an order made by a Magistrate's Court in respect of any person who is not represented by a lawyer, the person shall be informed by the Magistrate of the right to appeal at the time when sentence is passed, or the order is made."

16. On the 3rd May 2011, the appellant appearing in Court being properly advised of his rights to legal representation, waived his rights to counsel and furthermore the Magistrate gave him until 19 March 2012 to prepare a defence to the charge, given that he was appearing for himself.

17. It is quite clear from a reading of section 246(3) that it is for the benefit of an accused appearing in court without legal representation, not an absent accused who is unrepresented.

18. By not appearing this accused has waived all his rights as an unrepresented accused including his right to appeal when being sentenced. The learned Magistrate's sentence ends (at para 28) with the advice that the absent accused had 28 days to appeal.

19. This ground of appeal fails; and the appeal against conviction is dismissed.

Sentence

20. The sentence passed on the appellant by the Magistrate was well within the tariff range. The victim was knocked unconscious for at least 10 minutes and there has been no attempt by the appellant either to show remorse or to reconcile with the victim prior to the hearing. When an accused defies authority and willingly absents himself from the hearing of his trial he can expect no leniency. The fact that he is a soccer player of national fame is of no consequence. Every man and woman, be they famous or not is an equal before the Court.

21. As the Chief Justice said in Batiratu HAR001 of 2012, para 33:

"The person in question might be rich, famous, notorious, highly popular, a foreign dignitary, prominent in politics, an aristocrat or member of a royal household, or a star of film, television or the sporting world. It is essential that the courts treat such persons no differently from the ordinary person in the street. Before the law no more can be expected of them than from others. They do not come to the courts with a handicap nor with an edge on others. They are not to be penalized for their fame, nor given greater leniency for their importance and standing in the community."

22. The sentence is correct in law and perfectly justifiable. The appeal against sentence is also dismissed.

23. The appellant will start serving his term of imprisonment forthwith.

Paul K. Madigan
JUDGE

At Suva
31 August 2012