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State v Narau [2020] FJMC 44; Criminal Case 333 of 2016 (7 February 2020)

IN THE MAGISTRATES’ COURT OF FIJI
AT LAUTOKA
EXTENDED CRIMINAL JURISDICTION


High Court Criminal Case No. 94 of 2016
Magistrates’ Court Criminal Case No. 333 of 2016


STATE
v.
TEVITA NARAU


For the State: Sergeant Theodore Lew

For the Defendant: In Person


TRIAL IN ABSENTIA RULING


  1. You were originally charged with one count of Burglary and one count of Theft. You were first produced in Court on these charges on 3 May 2016. The charges were read out in open court and explained to you. You indicated that you understood the charge against you. On 7 June 2016, your disclosures were served on you and your plea was taken. You pleaded “not guilty.” On 27 June 2016, these criminal proceedings were adjourned for mention to fix a voir dire hearing date to 28 September 2016. You did not appear on that next date. A bench warrant was issued against you on 17 October 2016.
  2. It turns out that you either had been or were subsequently remanded in respect of another case. You were produced in court on 9 January 2017. The State filed an amended charge on this day. Your charge was reduced from Burglary and Theft to just Theft. The learned Magistrate took your plea on the Amended Charge. You entered a plea of “not guilty.” These criminal trial proceedings were then adjourned for hearing to 9 May 2017. On 9 May 2017, you were not present in Court. Unfortunately, you had not been produced. The hearing had to be vacated and the matter was adjourned for mention to 13 June 2017 to permit your production. You were produced on that day. After a series of mentions, the matter was called on 12 September 2017 and on that day the matter was adjourned to fix another hearing date. Unfortunately, no hearing date could be fixed because you were not produced.
  3. Matters continued in this manner – adjournment after adjournment during which the Court issued production order after production order. Production orders that were disobeyed with no explanation or courtesy letter or presence by a representative of the Fiji Corrections Service to explain why. Finally on 8 May 2018, the State informed the Court that you had been released from prison earlier. A bench warrant was issued against you. You appeared in Court on 27 November 2018 and the bench warrant was cancelled. On 16 July 2019, you were present in court and these criminal trial proceedings were once again fixed for hearing, this time to 7 September 2019.
  4. You were not produced on 7 September 2019. You next appeared on 16 October 2019. The matter was adjourned to 3 December 2019. You did not appear and I issued a bench warrant against you. The State filed a report on 21 January 2020. The report was prepared by Detective Constable 3517 Ratu Meli. He reports that he had checked with the Naboro Correction Facility, the Suva Correction and Remand Facility, the Vaturekuka Correction and Remand Facility and the Natabua Correction and Remand Facility and you were not remanded or incarcerated in these places. He had also checked at Natabua Stage 2 and at the juice stand, billiard shops and drinking spots you usually frequented with negative results.

The Law


  1. Section 14 (2) (h) of the Constitution guarantees the following:

“14. – (2) Every person charged with an offence has the right –
(h) 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;

(ii) the conduct of the person is such that the continuation of proceedings in his or her presence is impractical and the court has ordered him or her to be removed and the trial to proceed in his or her absence.”

  1. Pursuant to section 7 (1) (b) of the Constitution, a Court may, if relevant, consider international law applicable to the rights and protection of the rights and freedoms contained in our Bill of Rights.
  2. In The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, Case No.: STL-11-01/PT/AC/AR126.1 [2012] STLB 11; 1 November 2012 (In Absentia Reconsideration AC) [2012] STLB 11 (1 November 2012), the Appeals Chamber for the Special Tribunal for Lebanon upheld the Tribunal’s decision to hold a trial in absentia.
  3. The Appeals Court held that there must be reasonable steps taken to notify the Accused of the proceedings; the evidence of notification must be such so as to satisfy the Court that the Accused actually knew of the proceedings against them; and the evidence must satisfy the Court with a reasonable degree of specificity that the Accused’s absence means they must have elected not to attend the hearing and have therefore waived their right to be present.
  4. In Stoyanov v. Bulgaria – 39206/07 [2012] ECHR 184 (31 January 2012), the European Court of Human Rights held that trial courts had the discretion to order trials in absentia in circumstances where a Defendant has received notification of his or her trial and does not wish to take part in it. The following is a useful articulation of the due process considerations involved:

“31. The Court has not ruled out the possibility that, in the absence of official notification, certain established facts might provide an unequivocal indication that the accused is aware of the existence of criminal proceedings against him and of the nature and the cause of the accusation and that he does not intend to take part in the trial or wishes to avoid prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities, Iavarazzo v. Ital (160;(dec.), no. 50489/99, 4 December 2001), or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces (se0;Sejdovic, cited abed above, § 99). Such circumstances are to be distinguished from the outright fact of fleeing from the crime scene in fear of prtion or a gene general expectation that criminal proceedings might be instituted, which are not sufficient to justify the assumption that the accused was aware of the proceedings for the determination of the charges against him and has waived his right to appear in court. An assumption ot that kind would risk undermining the very concept of the right to a public hearing within the meaning of Article 6 §&#160 the Convention tion as well as the notion of an effective ce guaranteed under Articleticle 6 &##160;3 of the Convention,tion, which includes the right of the accused to be informed prompf the nature and cause of t of the charges against him, to have adequate time and facilities for the preparation of the defence and to examine or have examined witnesses against him.


The Court has not ruled out the possibility that, in the absence of official icaification, certain established facts might provide an unequivocal indication that the accused is aware of the existence of criminal proceedings against him and of the nature and the cause of the accusation and that he does not intend to take part in the trial or wishes to avoid prosecution. This may be the case, for example, where the accused states publicly or in writing that hs not intend tend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities, azzo v. Italy (160;(dec.), n489/99, 4 Dec4 December 2001), or when materials are brought to the attention of the authorities which unequivocally shat hawarehe proc proceedings pending against him and of thof the charges he faces (see SejdoSejdovic

  1. For a trial in absentia to be justified, what is decisive is whether the facts of the case show unequivocally that the applicant was sufficiently aware of the opportunity to exercise these rights in the context of the specific proceedings instituted against him and whether he might be considered to have waived his right to appear in court. In the absence of any noation tion this right can neither be seen to have been clearly waived nor exercised effectively.
  2. In #160;the C#8217;s view, no , no such circumstances have been established in the instant case. In this respect the present case discloses no material difference from the case of Sejdovic, citove. ere mere absence of thof the applicant from his home is insufficient to consider that he was aware of the proceedings and, consely, had absconded (see ShkallAlbania, no.&#no. 26866/05, ; 73, 10 May0 May0 May 2011, Italy, no. 5941/04,1/04, § 55, 28 September 2006, and&Sejd>Sejdovic, cited above, § 100). The Government’s argument is notd on bjective factors tors viewed in the lof the evideevidence ance against the applicant; it assumes that the applicant was responsible for the killing of his girlfriend. As in Sejdovic, the Court is unable to accept this argument, which also runs counter to the presumption of innocence.
  3. In previouss concerning conviconvictions in absentia the Court has hhat to inforinform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and antive requirements capable of guaranteeing the effective eive exercise of the accused’s rights; vague and informal knowledge cannot suffice (see T. v.y, 12 October 1ber 1992, § 28, Series A no. 245 C, and&Somogyi v. Italy, no. 67972/01, § 75, ECHR 2004 IV). In the instant case it hasbeen been shown by the respondent Government that the cant had sufficient knowledge of the investigation opened oned on 24 September 2002 and the concrete charges brought against him on 2ember.”
  5. Closer to home, we have the following clearly articulated principles to follow.
  6. In Chand v State [2017] FJHC 865; HAA13.2017 (17 November 2017) his Lordship Perera J. made clear that the mere absence of a Defendant on the date fixed for trial or hearing is not sufficient to proceed in his or her absence. The Court must first be satisfied that the Defendant has voluntarily waived his or her right to be present.
  7. In Tulava v. State [2018] FJHC 1057; HAA37.2018 (29 October 2018) his Lordship Aluthge J at [19] made clear that Section 171 of the Criminal Procedure Act 2009 must be read in the spirit of section 14 (2)(h) of the Constitution. His Lordship made clear that what this means is that before proceeding to a trial in the Defendant’s absence, the Court must be satisfied that the Defendant has been served with a summons or similar process requiring his or her attendance at the trial and the Court must be satisfied that the Defendant has chosen not to be present. In respect of the latter, Aluthge J. makes clear, the Court must have some evidence before it in the form of a police report or affidavit to satisfy it that the Defendant has indeed chosen not to be present.
  8. In Kumar v. State [2016] FJHC 397; HAA 03 of 2016 (2 May 2016) his Lordship Aluthge J. held that the word trial at section 14 (2) (h) of the Constitution means both trial proper and trial within a trial.
  9. In Kumar v. State, supra his Lordship Aluthge J. clarified that where a Defendant absconds bail, the Court must first issue a bench warrant and then obtain evidence by way of either a police report or an affidavit to satisfy it that the Defendant has indeed chosen not to be present. However, Aluthge J. carved out this exception. Where the Court has received notice through Counsel for the Defendant and confirmation from the Fiji Corrections Service that a Defendant has escaped from remand there is no need for the issuance of a bench warrant. The Court may safely treat that as a voluntary waiver of a Defendant’s right not to be present and may proceed to holding a trial within a trial and a trial in the Defendant’s absence.[1]
  10. In Fiji Independent Commission against Corruption v. Nemani [2012] FJHC 1309; HAC37A.10 (3 September 2012) the Court per Fernando J. held that Defendants’ who voluntarily abscond from Courts may be tried in absentia: [20]. The Defendant in that case had fled the jurisdiction of the Court. She travelled to New Zealand without leave of the Court: [21].
  11. In Drova v. State [2012] FJHC 1304; HAA23.2012 (31 August 2012) per Madigan J. at [8], the Court held that there was no reason why the appellant should not have been tried in absentiaecially wlly when in the knowledge of the hearing date he deliberately absented himself by leaving the jurisdiction. By doing sos waiving all rights to be heard at the hearing.
  12. In R v O'Hare [2006] EWCA 471, [2006] Cri] 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 thaabsconding the trial was lias 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."


  1. Pursuant to Section 171 of the Criminal Procedure Act 2009:

“171. (1) If at the time and 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 apprehension of the accused person and cause him or her to be brought before court.”


Findings

  1. This is a summary offence. However, I note that section 171 of the Criminal Procedure Act 2009 must be read in conjunction with section 14 (2) (h) of the Constitution. Although not strictly speaking required by section 171 of the Criminal Procedure Act 2009, I issued a bench warrant against you.
  2. It is clear from the Record that you have had prior due process notice of:
    • (i) The Charge against you.
    • (ii) The evidence against you.
    • (iii) Trial.
  3. It is equally clear from the Police Report that you are not remanded or incarcerated anywhere in the country. In the circumstances, I find that you are at liberty to attend court if you so choose and I am satisfied that in not appearing you are constructively waiving your right to be present at your trial.

Result

  1. In the result and for the reasons set out above, I order that your trial be conducted in your absence. In accordance with my over-arching duty of fairness to you, I will first ascertain whether you made any admissions against interest to the Police and if you did, I will conduct a voir dire inquiry to determine the admissibility of those admissions before I move forward to trial proper.
  2. As was said by Lord Steyn in Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 at 118:

“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides.”


  1. I will not permit your choice not to attend Court to delay bringing this matter to a just conclusion, whether by way of an acquittal or a conviction at trial.

---------------------------
Seini K Puamau
RESIDENT MAGISTRATE


DATED at LAUTOKA this day of 2020


[1] See also State v Yalibula – Ruling 1 [2016] FJHC 451; HAC47.2014 (25 May 2016) per Aluthge J. at [11] – [13].


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