Judge: Courts are wrong – The Fiji Times

Courts must satisfy themselves as to why a suspect is not present in court before proceeding with a trial in absentia, the Fiji Court of Appeal has ruled.

This ruling was made after an appeal by Neel Naicker, who was jailed in absentia by the magistrate, whose decision was subsequently upheld by the Supreme Court.

Judge Isikeli Mataitoga of the Court of Appeal said in his ruling that the court was wrong to convict Mr Naicker in absentia without finding the reasons for his absence from court.

He added that the High Court had also wrongly upheld the lower court’s decision which jailed Mr Naicker for six months on one charge of assault occasioning actual bodily harm.

Judge Mataitoga said the judge did not consider Mr Naicker’s absence without good reason.

“In this case, the major flaw in the judge’s decision is the lack of analysis to determine that the appellant chose not to attend the trial,” he said in his May 3 ruling.

“The right to be present at his trial is a positive right and should not be easily brushed aside to make things as convenient as possible for the court.

“The mere absence of the suspect on the date set for the hearing is not a sufficient basis to proceed with a trial.”

Judge Mataitoga said Naicker was delayed by 326 days when he came to trial.

“The appellant was very ill and had to go abroad for medical treatment.

“If this investigation had been carried out before the decision to proceed with the trial in absentia, the requirements of Article 14(2)(h)(i) of the Constitution would have been met.

“It should be further noted that the provision of the Constitution in question does not provide that the court must proceed with the trial in the absence of the appellant (accused).”

Judge Mataitoga granted Mr Naicker bail pending his appeal and ordered his release from prison.