&nbB>
The State has appealed against the acquittal of the Respondents on a charge of robbery.
The Particulars of Offence reads that the Respondents "on the 12th day of February, 1994 at Samabula in the Central Divisrobbed SANJEEN SUBASH CHANDCHAND s/o Ram Subak of $1,200.00
cash the property of SHYNOO SERVICE STATION".
The facts and circumstances under which the Respondents were finally acquitted of the charge s hereunder.
On 21 August 1994 when they appeared before the learned Magistfor the hearing, two of the Prosecution witnesses were absent. An adjournment
was sought buht but this was refused. The charge was dismissed and both Respondents were acquitted.
In acquitting the Respondents the learned Magistrate stated, as follows:
"On 15/6/95, this Court set today as the FINAL Hearing.
The prosecution was ready on that day. All the witnesses were present and they were warned by the Court tend today's FINAL Hearing.ring.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> When the witnesses names were called, only 2 police officers were present for the Hearing. The complainant was not present.
/p>
This Court expects ainants to co-operate with the police in bringing complaints to a proper conclusion. This ehis entails complainants
complying with Court orders as to Final Hearing dates.
The complainant has not appeared today for the hearing of this matter. No reason has been given. By action, he has shown total disregard
to the Court desire to finalise this case today by proceeding to a final hearing. That type of attitude borders on contempt for the
Court's authority.
The prosecution has advised the Court that he cannot prove his case on the basis of 2 witnesses. He also said he cannot proceed without
the complainant's presence.
The two accused are innocent until proven guilty in a Court of law.
The prosecution been unable to present evidence to support the charge agathe two accused, the two accused are discharged. The groundround
is that there is no evidence to support the charge. The accused are accordingly acquitted on the charge laid against them pursuant
to Section 210 Criminal Procedure Code."
The State has appealed upon the following grounds:
(i) The Magistrate erred in law in that he failed to act judicially in the exercise of his discn to grant or refuse an adjn adjournment
in that he
(a) failed to take into account the history of the proceedings and the number of prior adjournment hgs occasioned by the responespondents
and/or their counsel;
(b) failed to consider the application for adjournment on its merit, failed to inquire as to if any witnesses were avai available
for the prosecution and failed to properly determine the reason for the absence of the two prosecution witnesses and the likelihood
of their attending at a subsequent hearing date.
(ii) That the Magistrate erred in law by failing to apply or rly apply the provisions of Section 210 Criminal Procedure dure Code
in that having refused the adjournment application, he failed to:
(a) ask the Defen to plead;
(b) ask the prosecutor to open the case;
p class=MsoNormaNormal style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (c) to rule that a case had not been made out for the prosecution on the evidence presented.
(iii) The Magistrate erred in law in that he failed to consider the open of Section 198 Criminal Procedure Code, Cap. 21, when it n it was apparent on the facts before him that there was an appearance before him of the complainant "...by
his Barrister or Solicitor," the police prosecutor.
Mr. Wilkinson, the learned Deputy Director of Public Prosecutions, argued that previously when hearing were given in this case all
the witnesses were present butt but Mr. Semisi the learned defence counsel was not ready so the hearing was adjourned to 21 August
1995. On the hearing day Mr. Semisi was not present and the first Respondent said nothing and the second asked for adjournment because
his counsel was not present and he did not know where he was.
Mr. Wilkinson said that to refuse an adjournment to the prosecution was an improper exercise of discretion e part of the learned MagisMagistrate.
In his argument the learned State counselrred the Court to my judgment (on a similar application) in STATE v KELEMEDI LAGI and APnd APOLOSA NAVUNISARAVI Criminal Appeal 15/96, the High Court (then Supreme Court) judgment in THE DIRECTOR OF PUBLIC PROSECUTIONS and ROBERT TWEEDLE MACAHILL (Crim. App. 17/80 and to PAIN J'S Judgment in DPP and VIKASH SHARMA & 2 ORS (Crim. App. No. 11/94). He submitted that s210 is to be applied only where there is hearing on merits.
The Respondents had no submissions to make.
&n/span>
I shall deal with the Grounds of appeal together.
The sole issue for the Court's determination is whether the learneistrate was right in acquitting the Respondents under s210 of CPC
or should he have grantedanted an adjournment under s198 CPC in all the circumstances of this case.
In this case there was a formal applicatio adjournment when the complainant was absent without any reasons known to Prosecution but
tbut two witnesses were present.
The said s198 of the CPC makes provision, inter alia, that if the complainant does noear, "the court shall dismiss the charge, un>, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as
it shall think fit..." (underlining mine for emphasis).
There is also section 203(1) CPC (under caption "non-appearance of parties adjournment") which provides, inter alia, &quo>"and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit." (underlining mine for emphasis).
Both the above sections allow the court to exercise its discretion before dismissing the charge. is not a case of withdrawal of complaint
(for which provisrovision is made in s201 CPC) to enable the Court to either discharge or acquit the accused. And under s201(3) the
effect of discharge is that it "shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts".
The only other section to which I ought to make reference is section 210 because after discharging the Respondents the learned Magte
proceeded immediately toly to acquit them under the said section. It provides:
"If at the close of the evidence in support of the charge it appears to the Court that a case t made out against the accu accused
person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."
It is my view that s210 has no application to the facts of this case. As the 'marginal note' to that section states 'acquittal of accused person where no case to answer', and as section itself states where, " if at the close of the evidence in support of the charge" it means that there has to be evidence adduced before the section is invoked. There was no evidence adduced to enable the learned
Magistrate to proceed to acquit the Respondents under this section.
The only reasons which the learned Magistrate gives for refusing the application for adjournment are that it was a "fiearing" and that "the prosecution, was unable to present evidence to support the charge ..." in the circumstances outlined above.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In the circumstances of this case I hold that tarned Magistrate was wrong in law and in fact in acquitting the Respondents under s210.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I am of the view that the only course open to the learned Magistrate was to exercise his discretion and dismiss thege under sections
198 and 2and 203(1). Even under s202 CPC it was open to the learned Magistrate to adjourn this case for that section provides, inter
alia:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "Before or during taring of any case, it shall be lawful for this Court in its discretion to adjourn the hearihearing 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, ...".
The Appellant applied for an adjournment and i judicial exercise of his discretion the learned Magistrate should have considered it.
He f He failed to do that for he does not state in the Record of the proceedings that he has considered it under an appropriate section
of the C.P.C.
The matter of adjournment in a situation such as the present was considered by the Fiji Court of Apin ROBERT TWEEDLE MACAHILL and REGINAM Cr. App. No. No. 43/80. There it is stated, inter alia, that a refusal is "matter of law" and that "granting of an adjournment is always the exercise of a judicial discretion".
Although an appellate Court is slow to interfere with the exercise of discretion, it so if injustice is likely to occur to the parties,
for it w it was said by ATKIN L.J. in MAXWELL v KEUN (1921) 1 K.B. 645, 653 C.A.:
"I quite agree the Cou Appeal ought to be very slow indeed to interfere with the discretion of the learned judge udge on such
a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of
the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would
be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty
to do so."
Here I find there was an improper exercise of discretion. In a similar ca this in the Hong Kong case of ATTORNEY GENERAL v TUNG YUNG YING CHUEN (1987) 2 HKC 349 it was held by the Court Appeal as follows:-
"(1) In exercising his discretion wh to dismiss the charges, the judge had to consider the time during which an accused person
rson had been kept in custody, the gravity of the charges and the behaviour of the prosecution.
(2) The judge must give an opportunity not only for the explanation of failure y party to have a case read ready but also, unless
for example a party had 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.
(3) The interests of the nity had to be considered as well as those of the individual charged. The judge should have have granted
a further short adjournment to allow for provision to be made for the material witnesses to be brought before the court or for some
explanation to be given for her absence."
This is what should have been done in this c/span>
&nbs> Also dealing with how the courts should exercise this discretion judicially considering such an application WOOLF J. in R v >R v BIRMINGHAM JUSTICES, ex p. LAM & ANOR (1983) 3AER 23, 28 said:
"When exercising the discretion which thee whether or not to adjourn cases, the justices have to exeo exercise their discretion
judicially.
Doing that, they must be just not only e defendants but to the prosecution as well. They must not 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."
I also adopt the passage from the judgment of HUGJ A in A.G. v TIP CHONG-KONG (1979) HKCR 141 is 141 where it is stated:
"It is well established that an exercise of the discretion is a matter of law which can allenged on appeal. But equt equally,
it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for
example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice."
I also find the following passage apt from the judgment of the High Court of Uganda sitting in appeal in the case of ARVI RATILAL GANJI 6 ULR 23 (quoting from UGANDA v MILENGE AND ANOTHER 1970 EACR 269 and 274):
"We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses
is either to adjourn the hearing, or if that is for some reason impossible to dismiss the charge unheard. We are aware that the Criminal Procedure Code does not precisely cover the present facts. But we think the position is analogous to that envisaged by s197 of the Criminal Procedure Code, that is the position which arises when the 'complainant' is absent. That section by the word 'complainant' probably means a private person who has made a complaint to the Court. In the absence of
this person clearly there can be no 'trial' and no true joinder of issue. The Court under these circumstances either adjourns or dismisses the charges.
"It seems to us that the position is substantially the same where the Magistrate has before him merely a public prosecutor, whose
function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet
it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark
on a trial of the case and to acquit the accused, the complainant against him being wholly unheard." (underlining mine for emphasis.)
A similar situation arose in the Hong Kong case of ATTORNEY-GENERAL v TUNG YING CHUEN (1987) 2 HKC 349 at 358 C.A. and I the following passage from from the judgment of KEMPSTER J.A. apt for I consider that is how the learned Magistrate ought to have dealt with the application rather than acquitting the Respondents:
"One relevant factor must be the time during which an accused person has been kept in custody. Anothst be the gravity of the
chhe 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 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.
I adopt the conclusion reached in GANJI (supra) where it is lucstated thus:
"If the learned magistrate hadtly assessed his powers and duty we think that he would have refused to proceed to what thet the
respondent asks me to regard as a trial, and would have dismissed the charge unheard and have discharged the accused. What was done
was done owing to a misconception by the learned magistrate of his powers and duty. We think that we cannot permit the present position
to stand because of that misconception..."
In the outcome, for these reasons and on the authorities, I find that it was a wrongful exercise of judicial discretion vested in
the learned Magistrate when he refused the prosecution's application for an adjournment and proceeded to acquit the Respondents for
the reasons he gave.
The appeal is allowed.
The order acquitting the Respondents is set aside. The case is remitted to the Magistrate's Court at Suva for a continuation of earing
before another MagisMagistrate according to law.
D. Pathik
JUDGE
At Suva
29 August 1996
Haa0041j.96s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1996/45.html
