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High Court of Fiji |
Fiji Islands - The State v Sivaro - Pacific Law Materials ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CRIMINAL APPEAL NO. 0038 OF 1996 Between:
STATE
man">Appellant
AND:
SULIASI SIVARO
Respondent
Mr. W.W. Clarke for the State
The Respondent in person
JUDGMENT
On 25 May 1994 the Resnt was acquitted without a hearing by the Magistrate's Court at Suva (S. Temo Esq., Magistrgistrate) on a Charge of being found in possession of 662.4 grammes of dangerous drugs contrary to section 8(b) and s41(2) of the Dangerous Drugs Act Cap. 114.
It is againis acquittal that the State appeals.
On 11 September 1995 a "final" hearing date was set for 11 October 1995. Buthat date the prosecution wion was unable to proceed to hearing by adducing evidence as its main witnesses were absent ( one was sick and two in Lau on tour) but the investigating officer was present.
The accused asked for "dismissal" of the chan the absence of his counsel.
Instead of granting an adjournment or discharging the accused which he was empowered to do the learagistrate acquitted him undm under s210 of the Criminal Procedure Code. The ground he gave for doing so was that "no evidence has been tendered to support the charge".
The following is the text of what the learned Magistrate said (quoting from R) before acquitting the Rese Respondent:
"1. On 11/9/95, both prosecutor and accused agreed for a FINAL hg today ie. 11/10/95.
2. Both parties were warned by the Court to have thase ready to proceed today.oday.
3. However the prosecutor is not ready. He sae police witness is lying aing at home sick. No medical certificate given to verify the above.
4. Furthermore, two police witnesses are in Lau on tour on official duties. Onl. Only 1 prosecution witness is present today.
5. Prosecutor has openly conceded that he is unable to prove his cash only 1 witness.
6. The accused has asked for the charge to be dismissedan>
7. Today is the final Hearing date. It is the prosecution's duty to prove the accused's guilt beyond reasonable doubt. To fulfil that further, witness ought to be called. Prosecution has only 1 witness present. He conceded that he cannot prove his case.
8. The charge against the ac is dismissed on the ground that no evidence has been tendetendered to support the charge. Accused is therefore acquitted of the charge. (Section 210 Criminal Procedure Code).
9. The leaves to be destroyed.n>
The above is the background to the case. The appeal is upon the ground that the Resident Magistrate erred in law in refusing to adjourn the case to allow the prosecution to bring its witnesses to Court.
The issue for the Court's determination is whether the accusould actually have been discharged and not acquitted.
The learned counsel for the State submitted that the Magistrate erred in larefusing to grant an adjourdjournment. He said s210 of the CPC is wholly inappropriate in the circumstances of this case. He submitted that he could have applied s198 CPC which allows for, inter alia, "dismissal" of the charge as opposed to "acquittal". He further argued that "technically" no date can be taken as "final" date and there is no provision for it in the CPC. He said that the refusal to grant an adjournment was not a proper exercise of his discretion. He stated that on several occasions the accused himself was not present and bench warrant had to be issued and this was the only time the prosecution applied for adjournment and it was refused. Mr. Clarke submits that for the above reasonscase ought to be sent back to the Magistrate's Court for reor retrial.
The Respondent said that he leaves the decision to Court.: 1">
This very ihas been dealt with by me in Crim. App. No. 41/96 STATE v LIVARIO RADREGA and DAVID LAL (Judgment just delivered). Therefore, instead of reiterating at length what I said there I make reference to that judgment of even date and briefly state the salient points pertaining to the issue before me.
I find that it was wrong on the part of the learned Magistrate to apply s210 to thts and circumstances of thif this case. That section deals with "acquittal of accused person where no case to answer" (marginal note) and where there is evidence adduced in support of the charge. Here, although one witness was present, no evidence was adduced. It was not even a case of "withdrawal of complaint" under s201 of CPC to enable the Court to either discharge or acquit the Respondent. Hence, it was open to the learned Magistrate to adjourn the case under s202 CPC which provides:
"Before or during the hearing of any case, it shall be lawful for this Court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective barristers and solicitors then present, ....." (underlining mine for emphasis).
The granting of an adjournment is always the exercise of a judiciacretion. (ROBERT TWEEDLE MACAHILL and REGINAM, (Crim(Crim. App. 43/80 FCA). I am of the view that, in the exercise of his judicial discretion the learned Magistrate ought to have granted an adjournment to allow the State to muster its absent witnesses. For the learned Magistrate to say that it was a "final" hearing day and he will not budge from that means that he is fettering the exercise of the judicial discretion vested in him which he cannot do. This approach of his is certainly going to cause injustice to the parties. Not only that, this was a very serious offence involving a huge quantity of 'drug' for which the law provides imprisonment for a few years and mandatory custodial sentence if the Respondent is found guilty and convicted. I find that if ever there was a case for the exercise of discretion it was this. On this aspect I refer to the following passage from the judgment of ATKIN L.J. in MAXWELL v KEUN (1928) 1 K.B. 645 at 653 C.A.:
As stated earlier the Court has to consider whether in this case it was an appropriate, fittid lawful exercise of the lehe learned Magistrate's discretion to acquit the accused.
A similar situation arose in the Hong Kong Court peal case of ATTORNEY-GENERAL v TUNG YING CHUEN (198 (1987) 2 HKC 349 at 350 and I find the following passage from the judgment of KEMPSTER J.A. pertinent to this case:
"One relevant factor must be the time during whn accused person has been keen kept in custody. Another must be the gravity of the charges. A third may be the behaviour of the prosecution. We incline to the view that not only must someone sitting in a judicial capacity give an opportunity for the explanation of failure by any party to have a case ready, whether in relation to documents, the availability of witnesses or otherwise but also, unless, for example, a party has shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time. We think, even without recourse to authority, that here the judge failed to doto do justice to the Crown. After all, the interests of the community have to be considered as well as those of the individual charged. Really there is only one way in which the judge's discretion could properly have been exercised and that was to grant a further short adjournment to allow for provision to be made for the material witness to be brought before the court or for some explanation to be given for her absence."
Here it is the Appellant's contention that the learned Magistrate did not exercise his discretion in a judicial way. In R v BIRMINGHAM JUSTICES, ex.p LAM & ANOR (1983) 3 AER 23, 28 WOOLF J said:
&quen exercising the discretion which they have whether or not to adjourn cases, the justices ices have to exercise their discretion judicially. Doing that, they must be just not only to the defendants but to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment means that that is an inevitable consequence."
ass=MsoNormaNormal style="margin-top: 1; margin-bottom: 1"> I find that because it was a 'final' he date and the Prosecution was in difficulties to proceed wied with the case (because of the absence of some witnesses) it was not a proper exercise of judicial discretion in all the circumstances of this case to refuse the application. An adjournment ought to have been granted.
The appeal is allowed.
The order acquitting the Respondent is set aside. The case is remitted to the Magistrate's Cou Suva for a continuation ofon of the hearing before another Magistrate according to law.
D. PathikJUDGE
At Suva
29 August 1996Haa0038j.96s
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