IN THE CONSTITUTIONAL COURT OF SEYCHELLES
[Coram: M. Burhan. J. (Presiding), G. Dodin. J. and F. Robinson. J.]
CP01/2015
[2016] SCCC 25
SHRONE AUSTIN
(Herein represented by her mother Haizel Austin of Bel Air, Mahe)
versus
ATTORNEY GENERAL
(in his personal capacity and as the representative of the Government of Seychelles and in terms of Rule 3(3) of the Constitutional Court (Application, Contravention Enforcement or Interpretation of the Constitution Rules 1994)
Heard: 18 October 2016
Counsel: Mr. Elvis Chetty and Mr. Basil Hoareau Attorney at Law for Petitioner
Mr. Chinnasamy Jayaraj Assistant Principal State Counsel for Respondent
JUDGMENT OF THE COURT
[1] In her amended petition dated 20th November 2015, the petitioner seeks the following reliefs:
i. declare that Article 19 of the Constitution has been contravened in relation to the petitioner.
ii. declare that the trial and the conviction of the Petitioner in respect of the case is a nullity and as such has no legal effect;
iii. order the 1st Respondent and the Government of Seychelles to pay costs to the petitioner; and
iv. make any other order this Honourable court deems fit and necessary in the circumstances of the case.”
[2] According to the averments contained in the petition, the petitioner was charged as an accused in the Magistrates’ Court for the following offence:
“Count 1
Driving a motor vehicle on the public in a manner which is Dangerous to the Public Contrary to section 24(1) (b) and (2) of the road Transport Cap 206.
Particulars of offence
Shrone Austin, 23 years old, a student, residing at Curio Road, Bel Air, on the 7th day of January, 2013, on the public at Curio road, Bel Air, Mahe, drove motor vehicle namely car registration No S18363 in a manner which was dangerous to the public having regards to all circumstances of the case, including the nature condition and use of the road.”
[3] It is apparent from paragraph 4 of the petition that the trial of the petitioner before the learned Magistrate took place, in the absence of the petitioner and was prosecuted by learned Assistant Principal State Counsel from the Attorney General’s Department. According to the journal entry in the record, the learned Magistrate delivered judgment in the said case bearing No T 11/13 on the 6th of February 2015, convicting the petitioner in her absence and thereafter on the 10th of February 2015, sentenced the petitioner to pay a fine of SR 7000/=.
[4] The petitioner avers that in doing so, the learned Magistrate had contravened sections of law dealing with the service of summons in the Criminal Procedure Code (CPC) as the petitioner was never served with summons as she had left the jurisdiction to reside overseas. It is further averred that the learned Magistrate had erred in that the learned Magistrate had failed to make a ruling that the case could be heard in the absence of the accused or that the summons had been served in accordance with the law.
[5] Paragraph 5 (iv) of the petition states that as a result of the learned Magistrate failing to take the steps as set out in the aforementioned paragraph, the petitioner was not represented at the trial and the hearing of the evidence in the case. The respondent prosecuted the case and led evidence in the absence of the accused, with the consent of the learned Magistrate. As a result, the petitioner did not get the opportunity and facility to prepare a defence nor examine the witnesses called by the prosecution or call witnesses and adduce evidence on her behalf.
[6] It is in this background context that the petitioner has sought the aforementioned reliefs.
[7] Learned counsel on behalf of the petitioner, in his oral submissions in support of this application stated that the summons on the petitioner had not been served in conformity with sections 72 or 73 of the Criminal Procedure Code. He also referred to section 74 which provides that if summons could not be served under section 72 and 73 of the CPC, then the serving officer could affix one of the duplicates of the summons to some conspicuous place in the house in which the person ordinarily resides. In this instant case learned counsel submitted, the word ordinarily resides refers to his residence in the Seychelles. He however admitted that an adult male in the family had received a summons and a summons was affixed to the said property but at that time as set out in the affidavit of the petitioner’s mother, the petitioner had left the jurisdiction to take on employment abroad.
[8] Learned counsel for the petitioner further submitted that the learned Magistrate had failed to satisfy himself that service had been effected and thereafter proceeded with the trial in terms of section 133A of the CPC. He admitted the petitioner had not appealed from the said decision.
[9] Learned counsel for the respondent submitted that article 19 (2) (i) of the Constitution, provides for trial to proceed in the absence of a person once summons have been served on him and if he fails to appear, it could be deemed that the person had consented to the trial taking place in his absence.
[10] It is learned counsel for the respondent’s contention that the service had been effected on the petitioner in accordance with the law. Whilst this service may not have been directly on the petitioner, it was under the procedures set out in section 72, 73 and 74 and therefore trial against the petitioner could proceed. He stated the learned Magistrate who was hearing the case at the time of service of summons had made a ruling in respect of the service of summons. He further stated that the amendment to the CPC also provided for trial in the absence of a person as once summons have been served under section 73(1), it is deemed that service has been effected and court could proceed with the trial. He finally stated the law provided for an accused person who has been convicted in absentia, the right to come to court under section 133 (A) (3) of the CPC and have the conviction set aside, on satisfying court that summons had never been served.
[11] We have considered the submissions made by both learned counsel. In order to obtain a better understanding of what transpired in the Magistrates’ Court, the original case record bearing No: T 11/13 was called for. On perusal of the said journal entries, we note that on the 29th of April 2013, the accused was absent and Mr. Chetty Attorney at Law according to the record had represented the accused. The journal entry reads as follows:
“Republic Rep M/s Sullivan
Accused - Absent Rep by Chetty.
Chetty: The accused is out of the jurisdiction let’s have a mention date. I have not been served with documents.
Court: mention for plea on the 3rd of June 2013 at 1.30 pm.”
[12] This journal entry read on its own, shows that the petitioner was aware of the case against her as learned counsel had committed himself by stating that he was representing her and was willing to accept documents on her behalf, after intimating to court she was out of the jurisdiction. It is pertinent to mention at this stage that section 133 A (2) provides for an Attorney at Law to represent an accused in his absence. It appears that thereafter however, learned counsel simply disappeared, even though he was well aware of the next date neither has he excused his absence thereafter.
[13] The record further indicates thereafter that on the 24th of June 2013, in the absence of the petitioner and counsel, the learned prosecutor moved court to issue summons on the petitioner under section 73(1) of the Criminal Procedure Code which application was granted by the learned Senior Magistrate. The learned Senior Magistrate in her ruling dated 15th July 2013 has made observation of this fact i. e. that the petitioner was represented by an Attorney at Law and the court is satisfied that “Counsel did appear for the accused on the 29thday of April 2013 and hence the accused knew of the case before court for otherwise counsel would not have been instructed.”
[14] According to the record on the 31st of July 2014, learned Magistrate Mr. Adeline had made order as follows; “ This court is satisfied that the accused was served in accordance with the law because service was effected in compliance with section 73(1) of the Criminal Procedure Code in that .........”. Therefore it is clear that the learned Magistrate did come to a finding that summons had been served in accordance with the law. Thereafter, the learned Magistrate using his discretion made further order that he would fix the case for trial and on the trial date decide whether the trial would proceed in her absence, giving time for the petitioner to either consent to the trial taking place in her absence or appear on the date fixed for trial as provided for in section 133 A (1) (a) and (b). Having thus fixed the trial for the 22nd of October 2014 as the petitioner failed to appear on the date fixed for trial, the learned Magistrate entered a plea of “Not Guilty” and ordered that the trial proceed.
[15] There has been no challenge from this order and further it would be incorrect to state as set out in paragraph 5 (iii) of the petition that the learned Magistrate had erred, in that the learned Magistrate had failed to make a ruling or that he had deferred his ruling that the case could be heard in the absence of the petitioner or that he failed to make a finding that the summons had been served in accordance with the law. Once court is satisfied that the summons have been served on the petitioner as per the provisions contained in the CPC and the learned Magistrate has ordered that the case proceed as the accused is not present on the date fixed for trial, the burden is on the petitioner to satisfy court her absence was bona fide. Having availed herself of this opportunity under section 133A (3) of the CPC if there is to be a challenge to the subsequent order made by the learned Magistrate, it should be done by the petitioner herself at the proper forum as errors or omissions in judgments or final orders are best remedied by way of appeal as held in the case of Edmond Adeline v The Family Tribunal (CC No 3 of 2000).
[16] It would be pertinent at this stage on considering the facts before court to refer to section 133 A (3) of the CPC that reads as follows:
“Where in the course of or after the conclusion of the trial of an accused person under paragraph ((b) of subsection (1) the accused person appears before court and satisfies the court that his absence from the whole or part of the trial was bona fide then-
(a) where the trial has not been concluded, the evidence led against the accused upto the time of his appearance before court shall be read to him and an opportunity afforded to him to cross examine the witnesses who gave such evidence and challenge any such evidence.
(b) Where the trial has been concluded, the court shall set aside the conviction and sentence, if any, and order the accused be tried de novo.”
[17] Article 46(4) of the Constitution which is also relevant reads as follows:
“Where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law.”
[18] It is apparent therefore that the petitioner has a legal remedy available to her under section 133A (3) of the CPC. The petitioner or anyone on her behalf cannot blatantly circumvent this law and seek redress in another forum refer cases of Hans Josef Hackl v The Financial Intelligence Unit & Anor CC 1/2009 and Germaine Amesbury v The Chief Justice and Ors CC 6 of 2006. It is our view that even an appeal would not lie from such a decision until section 133 A (3) of the CPC is complied with by the petitioner. Quite obviously this provision of law is intended to provide an opportunity for genuine persons who have bona fide grounds to explain their absence and ensure that persons who deliberately avoid court do not hold up the legal process.
[19] We also observe that although the petitioner is Shrone Austin and is seeking relief personally, she has failed to file an affidavit in support of her petition but relied on the affidavit filed by her mother Mrs. Haizel Austin who has no locus standi and does not claim any relief in this case. It appears to us the petitioner still refrains from getting personally involved in this case.
[20] Be that as it may, in a situation where trial has been held in the absence of an accused person as in this case, the law specifically provides for a remedy where the accused person (emphasis ours), should appear before court, in this instant case the Magistrates’ Court and satisfy the learned Magistrate that her absence was bona fide and thereafter, a ruling would be made by the learned Magistrate in accordance with law. The reason why the law places the burden on the accused to come to court and explain his/her absence from court was bona fide, is to ensure that the “game of hide and seek” eventually comes to an end.
[21] Other than the observations made above, we would not seek to decide on any other issue in order not to influence the decision of the learned Magistrate, if he is called upon to make a decision under section 133 A (3) of the CPC.
[22] We are of the view that for the aforementioned reasons, the petition should be dismissed. We make no order in respect of costs.
Signed, dated and delivered at Ile du Port on 13 December 2016,
M. Burhan G. Dodin F. Robinson
Judge Judge Judge