IN THE HIGH COURT OF FIJI
AT SUVA
[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO. HAA 005 OF 2021

ARIANA’S USED CAR AND SPARE PARTS

V

FIJIAN COMPETITION & CONSUMER COMMISSION

Counsel: Ms L Jackson for the Appellant
                  Mr K Gauna for the Respondent

Date of Hearing: 21 January 2022
Date of Judgment:	04 February 2022

JUDGMENT

[1]	Ariana’s Used Car and Spare Parts is a partnership firm (the appellant). The place of business is Lot 1, Ratu Dovi Road, Laucala Beach Estate, Nasinu.

[2]	Fijian Competition and Consumer Commission is a statutory body with prosecutorial powers under the Fijian Competition and Consumer Commission Act 2010 (the respondent).

[3]	On 1 November 2019, the respondent commenced prosecution against the appellant by summons pursuant to sections 81 and 88 of the Criminal Procedure Act. 

[4]	The charge read:

Statement of Offence
Misleading Conduct: Contrary to Sections 75, 132, and 129 (1) (3) (4) of the Fijian Competition and Consumer Commission Act 2010.

Particulars of Offence
Ariana’s Used Car and Spare Parts being a trader of Lot 1 Ratu Dovi Road Laucala Beach Estate, Nasinu in the Central Division did on 2nd day of June 2018 engaged in a misleading conduct, by falsely stating that mechanical repairs were conducted on Vehicle registration FORGVN – Mazada 2007 Engine No.LF236898 and charged fees in the amount of $1,200.00 to Shonal Prakash. 

[5]	The summons contained a notice that the appellant was required to appear in the Magistrates’ Court at Nasinu on 29 November 2019 to answer the charge. 

[6]	On 29 November 2019, the case was called in the Magistrates’ Court and adjourned with the learned magistrate recording – “Mention for service 28/02/20”. 

[7]	On 28 February 2020, the case was further adjourned with the learned magistrate recording – “Mention for service 18/05/20”.

[8]	Thereafter, the case was further adjourned on three occasions.  There was no appearance of the appellant.

[9]	On 21 September 2020, the learned magistrate tried the appellant in absentia and entered a finding of guilt. 

[10]	On 14 October 2020, the learned magistrate sentenced the appellant in absentia. The learned magistrate made the following orders:

a.	Total fine of $2000.00 dollars to be paid by 29/10/20.
b.	Further $1500.00 to be paid to the complainant. 
c.	Prosecution cost of $100.00. 
d.	In default 30 days imprisonment.

[11]	Although the default order was vague regarding who was to be imprisoned in default of the payment of fine, the respondent moved the court to enforce the fine against the owner. On 29 October 2020 a court sheriff was sent to arrest the owner.  Later on the same day, the learned magistrate canceled the committal warrant after the prosecution advised her that the fine had been paid. 

[12]	On 4 February 2021, the appellant filed an application for an enlargement of time to appeal against both conviction and sentence. The appeal is late by about 2 months and three weeks. 

[13]	The reasons for the delay are explained in the affidavit of the owner of Ariana’s Used Car and Spare Parts, Mr Abdul Shekeb. Mr Shekeb said that he only came to know about the conviction on 29 October 2020 when the court sheriff contacted him to execute a committal warrant for non-payment of a fine. 

[14]	His counsel made numerous requests to the court to obtain a copy of the judgment and by the time a copy was made available to him on 3 February 2021, the appeal was out of time. 

[15]	The proposed appeal is advanced on the following grounds:

i.	The Learned Magistrate erred in law when she proceeded with the trial in the Appellant’s absence without first being satisfied that:

a.	The Appellant had been properly served with the Respondent’s Summons dated 1 November 2019 in compliance with Section 14 (2) (h) (i) of the 2013 Constitution and Section 156 (1) (a) of the Fijian Competition and Consumer Commission Act 2010. 
b.	The Appellant had waived its right to be present. 

ii.	The Learned Magistrate erred in law when she proceeded to convict the Appellant on insufficient evidence.
iii.	The Learned Magistrate erred in law and in fact when she ordered the Appellant to compensate the complainant $1500.00 when the complainant had allegedly only paid the Appellant $1,200.00.

[16]	The application for an enlargement of time and the substantive appeal were heard together. Both parties have filed detailed submissions.
 
Jurisdiction 
[17]	Counsel for the respondent in his submissions has raised an issue regarding jurisdiction, arising from section 172 of the Criminal Procedure Act.

[18]	Section 172 of the Criminal Procedure Act states:

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 the merits. (underlining mine)

[19]	Further, the respondent relies upon the decision of the High Court in Vakamudulau v State [2018] FJHC 271; HAA45.2017 (12 April 2018), to submit that a person convicted in absentia does not have a right of appeal to the High Court because there has not been a final determination of guilt. 

[20]	In the case of Vakamudulau, the appellant appealed against his conviction after he was convicted and sentenced in absentia on a charge of theft. The court dismissed the appeal saying that there was no right of appeal and that the relief sought by the appellant lied with the Magistrates’ Court pursuant to section 172 of the Criminal Procedure Act. 

[21]	However, there are numerous cases where the High Court in the past had entertained appeals against conviction entered in absentia by the Magistrates’ Court, for instance, Raju v State [2017] FJHC 778; HAA06A.2017 (17 October 2017), Tulava v State [2018] FJHC 1057; HAA37.2018 (29 October 2018), Mohammed v State [2019] FJHC 935; HAA02.2019 (20 September 2019), Chand v State [2017] FJHC 865; HAA13.2017 (17 November 2017) and Rokolisoa v State [2017] FJHC 576; HAA024.2017 (28 July 2017. In some of these cases, Vakamudulau was referred but not followed. 

[22]	Section 172 of the Criminal Procedure Act is clear. The court is not functus officio in a case where an accused is convicted in absentia.  Section 172 grants the court discretion to set aside a conviction entered in absentia if the Accused is able to satisfy that his absence was beyond his control and that he has an arguable defence on the merits. 

[23]	The discretion provided by section 172 to set aside a conviction cannot be exercised where the court has finally determined guilt by imposing a sentence.   

[24]	In cases where the accused persons have been convicted and sentenced in absentia, any relief against the conviction and sentence lies with the appellate court. 

[25]	The right of appeal from the Magistrates’ Court to the High Court is governed by section 246 (1) of the Criminal Procedure Act.  Section 246 (1) states:

Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgment and sentence.

[26]	Subsection (7) provides:

An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.

[27]	The right of appeal provided by section 248 is very broad. It includes conviction, sentence or order. The exercise of that right is not qualified by section 172 of the Criminal Procedure Act. 

[28]	Subsection (7) preserves the right of appeal against any order pronounced during the course of the proceedings, until there has been a final determination of guilt, when the order may be appealed. The purpose of subsection (7) is to prevent interlocutory appeals in criminal cases. 

[29]	As Sharma J said in Mohammed v State [2018] FJHC 984; HAA28.2018 (9 October 2018) at [14]:

Section 246 (7) literally means an accused person’s guilt is not finally determined until that accused is sentenced. The entering of a conviction is a step towards finality of guilt but not the final determination of guilt. It is only when an accused is sentenced that his or her guilt is finalized not before that. This provision should be given a wide interpretation to achieve its purpose which is to consider appeals from the final determination of a matter in the Magistrate’s Court.

[30]	For these reasons, the appellant has a right of appeal to the High Court against both conviction and sentence entered in absentia by the Magistrates’ Court. 

Right to be present
[31]	Section 14 (2) (h) (i) of the Constitution provides:

Every person charged with an offence has the right to be present when being tried, unless (i) the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend.

[32]	It is clear that every accused has a right to be present when being tried and that right can only be waived if an accused deliberately chooses not to attend trial after being notified of the proceedings through summons or similar process.

[33]	As Prematilaka JA said in Rokoraicebe v State [2021] FJCA 90; AAU035.2019 (6 April 2021) at [14]:

The first of these conditions is an obligation on the part of the court envisaging sufficient notice on the accused that he should appear at the trial or a direction on the authority holding him to produce the accused in court for the trial while the second condition is a conscious, deliberate or voluntary decision on the part of an accused not to present himself for the trial. However, once such notice has been given to an accused, if not detained under the authority of court, it is his responsibility to make himself available to face trial on every occasion without any further notice unless prevented from doing so for reasons beyond his control. Therefore, section 14(2)(h)(i) of the Constitution is no license for an accused to evade process of court and course of justice.

[34]	Further, the court said at [15]:

It appears that even when an accused waives his right to be present the court is not necessarily bound by law to proceed with the trial without the accused. Discretion is vested in the trial judge to decide whether the accused should be tried in his absence or not. 

[35]	According to the English decisions the discretion to proceed or not to proceed to trial in absentia should be exercised with great care in order to avoid an unfair trial (R v Abrahams 21 VLR 343, p 346, Regina v Jones [2002] UKHL 5, R v O’Hare [2006] EWCA Crim 471, [2006] Crim LR 950)).
[36]	The cardinal principle is that the trial must be fair regardless of whether the Accused is present or absent from the trial. 

[37]	In the present case, the accused was a business entity. The owner was not personally served with the summons. Instead the summons was pasted on the office window of the business entity at Lot 1, Ratu Dovi Road, Laucala Beach Estate, Nasinu. The address of the business is not an issue. The issue is whether there was an effective notification of the criminal proceedings either by way of summons or similar process. 

[38]	Section 77 (1) of the Criminal Procedure Act states that:

Every summons shall, if practicable, be served personally on the person summoned by delivering or tendering to the person one of the duplicates of the summons.

[39]	Section 79 of the Criminal Procedure Act provides: 

If service in the manner provided by the preceding sections cannot be effected by the exercise of due diligence, the person serving it shall affix one of the duplicates of the summons to some conspicuous part of the house in which the person summoned ordinarily resides, and the summons shall then be deemed to have been duly served.

[40]	Section 80 (1) of the Criminal Procedure Act concerns service of summons on a business entity: 

Subject to the provisions of any other Act, service of a summons on an incorporated company or other body corporate may be effected either by —
(a) serving it personally on any officer of the corporation; or
(b) by sending it by registered letter addressed to the registered or other principal office of the corporation in Fiji.

[41]	Similar processes of notification are provided by the Fijian Competition and Consumer Commission Act 2010. 

[42]	Section 156 of the Fijian Competition and Consumer Commission Act 2010 	states:

(1) Where under this Act a document or a notice maybe, or is required to be, given to a person, the document or notice may be given –

(a)	in the case of a person who is neither a body corporate nor a firm –

(i) by delivering it to him personally.
(ii) by leaving it at that person's place of residence last known to the person giving the document or notice with someone who apparently resides there, or at that person's place of business or employment last known to the person giving the document or notice with someone who is apparently employed there.
(iii) by sending it by post to that person's place of residence, business or employment last known to the person giving the document or notice;

(b)	in the case of a body corporate –

(i) by delivering it to the secretary of the body corporate personally; .
(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in Fiji with a person apparently employed there.
(iii) by sending it by post to the registered office of the body corporate or to the place or principle place of business; or

(c)	in the case of a firm –

(i) by delivering it to a member of the firm personally;
(ii) by leaving it at the place or principal place of business of the firm in Fiji last known to the person giving the document or notice with a person apparently employed there.
(iii) by sending it by posy to the place or principal place of business of the firm in Fiji last known to the person giving the document or notice.

[43] 	Clearly, the notification mechanisms provided by the Fijian Competition and Consumer Act 2010 are directory and not mandatory. The appellant (partnership firm) was duly served with the summons to appear in court.  The summons was left at the place of business of the firm. Such notification is allowed by the legislation. 

[44]	However, to hold a trial in absentia, the court must be satisfied of the following:

1.	The Accused had notice of the proceedings;
2.	The Accused deliberately chose not to attend trial; and
3.	A fair trial can be held without the Accused’s attendance. 

[45]	In this case, the learned magistrate made no inquiry regarding the non-appearance of the appellant. She made no inquiry whether the non-appearance was deliberate. She proceeded to hold the trial without making any assessment whether a fair trial could be held without the appellant’s participation. 

[46]	In the absence of an effective waiver, the trial held in absentia in this case was contrary to the Constitution. The appellant’s conviction and sentence are null and void.

[47]	Since the conviction and sentence passed following a trial held in absentia are null and void, I order a trial de novo before a different magistrate. It is not necessary to consider the second ground of appeal complaining about the sufficiency of evidence. It is for the trial court to decide on sufficiency of evidence de novo. 

Result
[48]	Enlargement of time allowed.
Appeal allowed.
Conviction and sentence set aside.
Fine, costs and compensation if paid are to be refunded to the appellant. 
A trial de novo is ordered before a different magistrate.
Case is listed for mention in the Magistrates’ Court at Nasinu on 21 February 2022 9.30 am. 

. …………………………………….
Hon. Mr Justice Daniel Goundar

Solicitors:
Jackson Bale Lawyers for the Appellant
Fijian Competition & Consumer Commission – Legal Officer for the Respondent