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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 44 OF 2015
BETWEEN:
MOHAMMED RAFIQ KHAN
APPELLANT
AND:
THE STATE
RESPONDENT
Counsel: : Ms. Diroiroi for Appellant
: Mr. Niudamu for Respondent
Date of Hearing : 29th February, 2016
Date of Judgment : 07th April 2016
JUDGMENT
1. Accused files this appeal against conviction recorded by the learned Resident Magistrate (RM) at Lautoka on 19th January, 2015.
Background
2. On 08th November 2010, the Appellant was charged with one count of Obtaining Money by False Pretenses contrary to Section 309 (a) of the Penal Code, Cap 17.
3. The trial was started before RM Mr. R. Wimalasena. Evidence called by the Prosecution was fully recorded by him. Upon conclusion of the prosecution case, counsel for the Appellant filled a no case to answer application which was dismissed by the same RM on 19th September, 2012.
4. RM Mr. Wimalasena left the bench thereafter and the case was set down for continuation of hearing before RM Mr. Naivalu on two occasions. However, no evidence was recorded before him.
5. On 28th October, 2013, the matter had been called before RM Ms. L. Girihagama for continuation of hearing. On 20th January, 2014, when the matter was called before RM Ms. Girihagama, she recorded ‘Accused is willing to adopt proceedings before this Court’ and proceeded to record evidence called by the defence. Trial was concluded on 06th August, 2014.
6. The Appellant was convicted on 19th January, 2015 by RM Ms. Girihagama for one count of Obtaining Money by False Pretenses. However, she did not prepare a written judgment or record the reasons for conviction.
7. Being surprised by non-availability of a reasoned judgment in the record, on 10th February, 2015, the Senior Court Officer of the Magistrates Court was directed by RM Mr. Wimalasena who resumed duties in the same Magistrates Court to seek advice from the Chief Magistrate regarding judgment and sentence.
8. Having considered the observations of the Chief Magistrate, RM Mr. Wimalasena fixed the matter for sentence on18th November, 2015.
9. RM Mr. Wimalasena advised the Appellant to file an appeal against the conviction. His advice fell on Appellant’s deaf ears. On 04th November, 2015, the Counsel for Appellant, by filing a notice of motion in the Magistrates Court, sought a stay of sentence and a trial de novo.
10. RM Mr. Wimalasena dismissed the notice of motion by his ruling dated 10th November, 2015.
11. Appellant filed this appeal out of time on 17th November, 2015.Having considered the merits of the appeal, Respondent did not object to the appeal filed out of time.
12. The Appellant filed his appeal seeking the intervention of this Court on following grounds of appeal:
i. The Learned Third Trial Magistrate erred in law when he refused the application for trial de novo made by Appellant’s Counsel;
ii. The Learned Third Trial Magistrate erred in law and in fact when he failed to stay sentencing on the basis of delay and abuse of process;
iii. The Learned Second Trial Magistrate erred in law and in fact to enter a conviction without giving a reason for the said conviction;
iv. The Learned Second Trial Magistrate erred in law when she failed to give a written judgment after entering a conviction.
Analysis
Ground I – The Learned Third Trial Magistrate erred in law when he refused the application for trial de novo made by the Appellant’s Counsel.
13. The Learned Third Trial Magistrate (Mr. Wimalasena), correctly rejected the application for trail de novo and stay of sentencing. He had no jurisdiction to order a trial de novo or stay the sentencing when a conviction had already been recorded. He correctly explained the right of appeal which the Appellant, albeit belatedly, has now chosen to exercise.
A discretion is given to a succeeding magistrate (second magistrate) who is stepping into the shoes of the magistrate who had heard and recorded the whole or any part of the evidence in a trial to choose the proper course of action to be taken. Section 139 of the Criminal Procedure Decree provides as follows:
139. — (1) Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this Decree or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.
(2) In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.
(3) The High Court may, on appeal, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced, and may order a new trial.
15. There is, however, a fetter on the magistrate’s discretion exercisable under Section 139 (1) when the accused is demanding that some witnesses be reheard. Justice Madigan in Baba v State HAA 040 0f 2013 (6 March, 2015) held:
“Such sentiments may well be relevant on the reading of s.139(1) alone however s139(2) would appear to fetter that discretion when the accused is “demanding” that some witnesses be reheard. The subsection refers to that demand as a right to be informed to the accused person by the second magistrate. When there is no record of the Magistrate have told the accused of this right then there must be a presumption then that any application for a trial de novo be granted. Even if the second magistrate does inform the accused of his right to have witnesses recalled, then it being a right, it is a demand that cannot be refused.
16. The record of the Magistrates Court does not indicate that the Appellant was represented by a counselor he exercised his right and demanded that the witnesses or any of them be re-summoned or re-heard when the matter was set down for hearing before RM Ms. Girihagama. It also does not indicate whether the Appellant was informed of such a right by the RM Ms. Girihagama when she commenced proceedings. However, it does indicate that, on 20th January, 2014, when the matter was called before Ms. Girihagama, she had recorded ‘accused is willing to adopt proceedings before this court’. It could be assumed that Appellant expressed his willingness for her to continue proceedings on evidence already recorded only upon him being informed of his right under Section 139 (2) of the Criminal Procedure Decree. Therefore, ground one has no merit and, fails.
Ground II - The Learned Third Trial Magistrate erred in law and in fact when he failed to stay sentencing on the basis of delay and abuse of process;
17. The learned RM Magistrate had no jurisdiction to grant a stay of proceedings on the ground of delay and abuse of process. This ground of appeal had later been abandoned by the Appellant himself.
Ground III - The Learned Second Trial Magistrate erred in law and in fact to enter a conviction without giving a reason for the said conviction.
Ground IV - The Learned Second Trial Magistrate erred in law when she failed to give a written judgment after entering a conviction.
18. There is no written judgment available in the case record. It is clear that learned second RM (Ms. Girihagama) failed to prepare a written judgment and record reasons for her decision when she convicted the Appellant. It is essential that the person convicted of a criminal charge must know the reasons why he or she was found guilty and convicted. Second RM obviously disregarded the law and violated a basic norm expected of a judicial officer when she failed to record reasons for conviction.
19. Section 141 of the Criminal Procedure Decree provides:
(1) The judgment in every trial in any criminal case shall be pronounced (or the substance of such judgment shall be explained)in open court either immediately after the termination of the trial, or at some subsequent time of which notice shall be given to the parties and their lawyers (if any).
(2) The whole judgment shall be read out by the presiding judge or magistrate if requested by the prosecution or the defence.
20. Section 142 (1) of the Criminal Procedure Decree provides:
Subject to sub-section (2), every such judgment shall, except as otherwise expressly provided by this Decree, be written by the judge or magistrate in English, and shall contain —
- (a) the point or points for determination;
- (b) the decision and the reasons for the decision; and
- (c) shall be dated and signed by the judge or magistrate in open court at the time of pronouncing it.
21. The giving of reasons is a normal incident of the judicial process. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The obligation to explain how, and why, a particular decision has been reached stems from the common law. In more recent times, it has been suggested that this duty has a constitutional dimension as well. Wainohu v New South Wales (2011) 243 CLR.
22. In the case of judicial review, reasons enable a reviewing court to be satisfied that the decision-maker took into account all matters that he or she was required to consider, and did not have regard to extraneous material. Reasons also enable the reviewing court to determine whether any other form of jurisdictional error has been demonstrated.
23. There is no better explanation than that given by McHugh JA in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 as to why judges do give reasons for their decisions.
“The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“... A requirement that judges give reasons for their decisions — grounds of decision that can be debated, attacked, and defended — serves a vital function in constraining the judiciary's exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
24. The Respondent agrees that a fundamental error had been done by the learned second Magistrate when a detailed written judgment giving reasons for the conviction was not recorded.
25. Section 139 (3) of the Criminal Procedure Decree allows this Court to set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if the court is of the opinion that the accused has been materially prejudiced, and to order a retrial.
26. Appellant has been materially prejudiced by the conviction entered without giving reasons by the learned second RM. Hence, grounds III and IV succeed to the extent hereinafter described.
27. It is clear that right conferred by Section 139(2) is available to an accused only... whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded.... by another magistrate. [Section 139 (1)].
28. RM Mr. R. Wimalasena is the magistrate who recorded the evidence called by the Prosecution in its entirety. He cannot be deemed as ‘another magistrate’ in terms of the Section. He had the benefit of observing the demeanour of all the prosecution witnesses. Having dismissed the no case to answer application, he proceeded to explain the rights of the accused in defence when he ceased to exercise jurisdiction in the case. He is back on the bench having jurisdiction to hear the case. Case record containing evidence led before him is sufficiently available to him.
29. Justice Gounder in Jale baba HAC 135.2010 described some of the factors to be taken into consideration when exercising discretion under Section 139 (1) of the Criminal Procedure Decree in the following terms:
“The learned Magistrate has discretion to either proceed with the case on the record of the previous Magistrate, or de novo. This discretion must be exercised after weighting (sic) all the relevant factors such as sufficiency of earlier court record and whether the accused is disadvantaged by the fact that the new magistrate had no opportunity to observe the demeanour of the prosecution witnesses when they gave evidence. Of course, no exhaustive list can be produced. The right to a fair trial is the ultimate objective.”
30. If trial de novo is ordered, Prosecution will be placed at a disadvantage of having to call the witnesses again after a passage of nearly four years. Some witnesses may be missing or, even if they are available, their memory may have been faded away. It would be unfair to put the victim and witnesses of Prosecution through the ordeal again of giving evidence. The right to a fair trial is the ultimate objective. Fairness is not only for the accused but for everybody involved in the trial process.
Following orders are made accordingly:
a. Conviction recorded on 19th January 2015 by the learned Resident Magistrate Ms. L. Girihagama is annulled and quashed.
b. RM Mr. R.Wimalasena is directed to resume the trial from where he had stopped and to proceed to hear the case, record evidence of the defence, if any, and to complete the trail.
Aruna Aluthge
Judge
At Lautoka
07th April, 2016
Solicitors: Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecution for Respondent
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