IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 33 OF 1993

STATE

-v-

NEORI TAVAKATURAGA QOLI

CHARGE: Manslaughter - Contrary to Section 198 of the Penal Code, Cap. 17.

Mr. J. Hook for the State
Mr. J. Semisi for the Accused

RULING

Mr. Hook -

In so far as prosecution is concerned I have certain difficulties in that. Only 10 witnesses are here today. Five officers including Investigation Officer are not present. The confession would be in issue. But without Investigation Officer and other Police officers I cannot continue with this case. I ask for adjournment. Investigation Officer and another officer are in Iraq for at least 6 months. I appreciate difficulties the Court will have in adjourning this case. In fairness to the defence court may refuse my application. Investigation Officer was present when this case was last called.

Mr.Semisi -

I strongly oppose any further adjournment in this case, as this case has been going on for sometime. It is not the fault of the defence that Investigation Officer is not here with other witnesses. The Investigation Officer was present when the case was last called. It is the height of discourtesy and indecency. I ask Court to exercise your power under S.201 of C.P.C and discharge the accused.

Mr.Hook -

I oppose this application by the Defence Counsel. A life has been lost and prosecution must be allowed to prosecute this accused person.

Court -

I've heard both counsels for the Prosecution and the Defence in relation to the Prosecutions' application for an adjournment as some 11 witnesses including the Investigation Officer Cpl. Rabuka and another officer are out on peacekeeping duties in Iraq.

Although, I sympathise with the application of the prosecution, nonetheless, I have also to bear in mind that the absence of the police officer witnesses, including Det.Cpl. Rabuka the Investigation Officer in this case is through no fault of the accused. They were all present when this case was last called and were warned to appear in Court today. As they are police officers and are supposed to uphold the law I find that their conduct in absenting themselves today borders on the height of arrogance and irresponsibility. They ought to have the courtesy and decency to inform the DPP's office of their predicament prior to leaving for Iraq. I hope that this kind of irresponsible behaviour would not be repeated in future as it also borders on contempt of court. This court will not tolerate this kind of behaviour in future. I hope prosecution will notify the Commissioner of Police of the concern of this Court.

The circumstances and facts surrounding this case do not appeal to this Court to acquit the accused since the prosecution is unable to commence with its case, nor do I believe that it would be fair to the accused if application for adjournment which could be 6 months or more be fair to the accused person. The offence is a serious one since it involves the loss of a human life.

Having regard to the circumstances and facts surrounding this case, I believe that the application by the prosecution should not be allowed and I so order.

Furthermore, I believe the best course to be followed by this Court is to exercise the power vested in the Court under S.201 of the C.P.C. I will therefore in exercise of my power under such section withdraw this charge against the accused and order that he be discharged under Section 201 (2) (b) (ii) of the Criminal Penal Code.

S W Kepa
JUDGE

16th May, 1994
HAC0033D.93S