State v Nimacere [1994] FJHC 61; Hac0006 & 10r.93s (14 June 1994)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL CASES 6 & 10 OF 1993

STATE

v

ALIFERETI NIMACERE

Counsel: Mr. C. Hook for State
Accused in person

Hearing: 14 June 1994
Ruling: 14 June 1994

ORAL RULING OF PAIN J. ON
APPLICATION BY STATE TO AMEND INFORMATION

The information before the Court contains four counts. Count one is unlawful use of the motor vehicle on the 8th of August l992 and Count 2 is a charge of Robbery with Violence also on the 8th of August l992. Counts 3 and 4 are charges of doing an act intended to prevent arrest. They involve one incident that occurred on the 28th of August 1992.

The State has made application to amend the information by deleting Counts 3 and 4. The State wishes to proceed on Counts l and 2 only in this trial. The reason advanced for this, is that Counts 3 and 4 involve a different transaction occurring on a different date.

Personally, I could see no objection to proceeding to trial on four counts. I would not view the four counts as oppressive even though they involve two separate transactions. In my view the counts could easily be dealt with by assessors with a proper direction. However the prosecutor has referred me to Section l20 of the Criminal Procedure Code. A more careful reading of that Section seems to indicate that charges can only be included in an information if they are founded on the same facts or form. Without necessarily determining the matter, it may be, that within this jurisdiction there is a separate statutory provision that would prevent several charges being heard together if they involve different transactions on different days unless they were a series of the same or similar offences.

Application having been made to sever these counts, I called upon the accused. He made it clear that he wants a separate trial on the two counts arising out of the incident on the 28th of August 1992.

In all the circumstances, it is therefore proper that I should accede to the prosecution's request to have those two counts dealt with on another occasion and not on this trial.

That would leave Counts 1 and 2. I expressed concern about a charge of unlawful use of a motor vehicle being dealt with in the High Court and questioned the jurisdiction for this. The prosecutor relies upon Section 120 subsection l of the Criminal Procedure Code for the inclusion of Count 1. In my view however there is no jurisdiction for such a charge to be heard in the High Court. The charge is not an electable offence. I note from the record of the proceedings in the Magistrates Court that it was included in the complaint filed in that court and the accused pleaded `not guilty' to the charge in that court. It was only on the charge of robbery with violence that he elected High Court trial and the preliminary inquiry was held in respect of that charge only. As I see it, the charge of unlawful use of a motor vehicle is still within the Magistrates Court. In my view Section 120 only gives jurisdiction for the inclusion of a particular count if it is otherwise within the jurisdiction of this court. I do not consider that Section 120 can create jurisdiction for this Court to hear charges that are not electable.

In any event if the accused were represented by Counsel, it may well be that the paucity of evidence would have occasioned an application to have the count struck out. As I read the evidence at the preliminary inquiry, there is no direct evidence of who took the van. At best the evidence against the accused would be that he was in it, in that he was identified walking away from it after it had stopped. I make it clear that I am not deciding in any way whether that evidence is correct or not. However, a good many matters could have occurred between the taking of the vehicle and the observation of several persons leaving the vehicle some time later. It may well be, although the matter has not been argued that there would be insufficient evidence to proceed on this charge. It would be entirely a matter of inference and the facts would equally be consistent with the accused having got into the vehicle after it had been unlawfully taken by somebody else.

In all the circumstances, I consider it inappropriate for the first count to proceed.

Accordingly I order that Count 1 of the information is to be deleted and the accused is to be tried separately on Counts 3 and 4. This trial will proceed on Count 2 only.

JUSTICE D.B. PAIN

HAC0006&10R.93S