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Fiji Independent Commission Against Corruption v Nemani [2012] FJHC 1309; HAC37A.10 (3 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 37(A) of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

vs

FIONA TUKANA NEMANI

Counsel: Mr. Aslam for FICAC
Date of Ruling: 03rd September 2012

RULING

1. The accused Foana Tukana Nemani is charged with one count of Extortion By Public Officers contrary to section 107 of the Penal Code and one count of Abuse of Office contrary to section 111 of the Penal Code.
   
2. The accused was released on bail in the Magistrates Court and she pleaded not guilty to the charges. Counsel appeared for the accused. Whilst the case was in the Magistrates Court the accused left Fiji without prior leave of court and absented from court violating bail conditions imposed on her.
   
3. From New Zealand the accused sent a letter dated 04/12/2009 to the Chief Registrar of the High Court of Fiji stating that her Counsel Mr. Graham Leung is no longer practicing and that she is in the process of seeking a new lawyer. She has further said that based on her doctor's advice she is undergoing medical treatment in New Zealand and had requested court that any substantive hearing of charges may not take place until June or July 2010.
   
4. Thereafter the accused never appeared before the Magistrates Court. The case was transferred to High Court and now the prosecution moves that the accused be tried in absentia.
   
5. Prosecution submitted that the accused voluntarily has violated the bail conditions and absconded from court and that she has also waived her right to be present in court at the trial.
   
6. FICAC also submitted that the consequence of the absence of the accused is the inevitable delay of the trial and stagnation of the case thereof. This would cause irreparable damage to the justice system and the general public will lose confidence in the system.
   
7. FICAC has filed a succinct submission in support of the application with the relevant case laws precedents.
   
8. Every accused person has a right to a fair trial.
   
9. The International Covenant of Civil and Political Rights (ICCPR) also have recognized safeguarding the rights of an accused person to a fair trial. Although Fiji has not ratified ICCPR it has maintained the standards of principles with regard to a fair trial.
   
10. In case of Tevita Nalawa v State [2010] FJSC 2 Madigan J said;
    

"Although Fiji has not had any Parliament for some years, the existing Government has shown its willingness to respect the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights by its passing of the Crimes Decree 2009 which incorporates the International Covenant on Civil and Political Rights. The Courts here have shown at all levels their respect for the rights of an accused person to a fair trial, that is a trial according to law."

11. In the instant case it is clear that the accused Foana Tukana Nemani has left to New Zealand without the leave of the court and voluntarily absconded from court showing no interest in the case against her. The prosecution has waited for more than 2 years for the accused to return to Fiji to face her trial. Therefore, as applied by the prosecution now it is for the court to decide whether the court has the discretion to try the accused in absentia in the circumstances.
    
12. There is no provision in the Criminal Procedure Decree 2009 to try an accused person in absentia in the High Court with assessors. The only provision available is section 171 (1) of the Criminal Procedure Decree 2009 in Part XIII, which applies to trials before the Magistrates Court.
    

Section 171 (1) (a) reads:

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) ....

13. Part XIV of the Criminal Procedure Decree provides for the procedure in trials before the High Court. It makes no provision and is silent on trials in absentia when the accused person absconds from court. Therefore it is appropriate to see the common law and how the common law jurisdictions have created precedents when an accused person deliberately absents himself for his trial, without contravention to the fair trial principles.
    
14. This issue was comprehensively discussed in R v Jones (Anthony) [2002] UKHL.5. It was held that a Judge had discretion to commence a trial in the defendant's absence, though it was to be exercised with great caution. Further it was held that the commencement of trial in the voluntary absence of the accused did not contravene article 6 of the European convention on Human Rights.
    
15. The facts of the case were: In 1997 the appellant was charged with conspiracy to rob and committed on bail for trial. In January 1998 he was arraigned and pleaded not guilty. He was bailed to appear at his trial. A trial date of 9 March 1998 was initially fixed, but that date was vacated and replaced with 1 June 1998. On that date the appellant did not surrender for trial, a warrant was issued for his arrest and the case was relisted to commence on 5 October 1998. The appellant had not been arrested by that date nor surrendered to his bail. The case was adjourned to the following day when it was listed for trial. The appellant's legal representatives had withdrawn from the proceedings in the light of his failure to attend on 1 June and he was unrepresented. Counsel for the Crown applied for the trial to proceed in his absence. The judge, taking the view that the appellant had deliberately frustrated the prosecuting authorities' attempt to have the case concluded, ruled that the trial should begin. The appellant was convicted and sentenced to a term of imprisonment. The Court of Appeal [Criminal Division] dismissed his appeal against conviction.
    

He appealed against the Court of Appeal decision and it was dismissed by the House of Lords.

16. On the discretion of the Court to try the accused in absentia Lord Nolan said:
    

"First, in common, I believe, with all of your Lordships, I would hold that under English law the discretion of the trial judge to proceed with the trial in the absence of the defendant exists in principle (subject to the satisfaction of all the appropriate safeguards) not only after but before the trial has begun, though naturally it will have to be exercised with even greater care in the latter case. ..."

17. Lord Bingham of Cornhill said that the seriousness of the offence is immaterial when using the discretion to decide to try an accused in his absence. The Lord Bingham said:
    

"First, I do not think that "the seriousness of the offence, which affects defendant, victim and public", listed in a paragraph 22 (5) (viii) as a matter relevant to the exercise of discretion, is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor."

18. In the instant case the accused absconded even before the case was fixed for trial. So the question arises whether the court can conclude that the accused has waived her right to be present at the trial when she absconds during the pre trial stage.
    
19. In case of R v O'Hare [2006] EWCA Crim 471, [2006] Crim LR 950, the Court said:
    

"We have taken into account that the Appellant was 18 at the time. Nonetheless we are sure that the Appellant appreciated that by absconding the trial was likely to proceed in his absence. As he made no attempt to contact his solicitor from Ireland, he plainly appreciated that his solicitor would be unable to put forward a case on his behalf at trial and arrange representation for him. In those circumstances, we consider that the Appellant waived his rights."

20. On the above case precedents it is clear that the courts in common law jurisdictions have taken the view that the accused who voluntary absconds from the court can be tried in absentia, which can be applied to this case as well.
    
21. In the instant case as stated before, the accused has clearly deliberately absconded from the court. First, she went to New Zealand without leave of the court and was not present in court. Thereafter she sent a letter to the Chief Registrar of the High Court seeking for time. However she never informed the court thereafter any reason that prevented her from attending court as per the bail conditions, nor did she take any steps to be represented by a lawyer. Prosecution has waited for more than 2 years. For how long more should the prosecution wait? As submitted by the FICAC this long delay would cause irreparable damage to the prosecution, to the justice system and the general public will lose confidence in the system.
    
22. It is apparent that the accused has deliberately and voluntarily absconded from court and chose not to exercise her right to be present or to give instructions to a lawyer to represent her. Therefore she has waived her right to be present at the trial.
    
23. However her rights have to be safeguarded at the trial in absentia by the presiding Judge. Assessors shall be clearly warned not to hold the absence of the accused against her. Further the prosecution should disclose and present in evidence all relevant material facts that would be advantages to the accused to the assessors. Judge must also warn the assessors in his summing up that the absence of the accused is not an admission of guilt and adds nothing to the prosecution case. Judge must also take steps to expose weaknesses of the prosecution case in his summing up.
    
24. Therefore with these safeguards which are not exhaustive, the accused in this case can be tried fairly in her absence as she has waived her right to be present at the trial.
    
25. Hence I allow the application by the Prosecution for the accused to be tried in absentia.
    

Priyantha Fernando
Judge
03.09.2012