Wehrenberg v The State [1996] FJHC 48; Haa0061j.96s (12 September 1996)

Fiji Islands - Wehrenberg v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 0061 OF

BETWEEN:

FRED AND WALBURGA WEHRENBERG
Appellants

AND:

STATE
Respondent

Second Appellant in person.
Rachel Olutimayin for thpondent.

Date of Hearing: 12th September 1996
Date of Judgment: 12th September 1996

JUDGMENT

Thisn appeal from a decision of the Chief Magistrate on the 22nd of November 1994 whereby he dehe declined to transfer the hearing of three charges of common assault, assault occasioning actual bodily harm and affray against the First Appellant and one charge of affray against the Second Appellant due to be heard in the Rakiraki Court. However the Chief Magistrate directed that the charges be heard in the Rakiraki Magistrate's Court on 13th and 14th December 1994 by Magistrate Mr. T. Karunairetnam instead of the Resident Magistrate at Rakiraki.

It is not necessary to go into any detail about the circumstances leading to the Appellants' applic to have the cases transfernsferred for hearing to either Suva or Ba except to say that the Appellants alleged before the Chief Magistrate and today before me that they had been subjected and are still subject to severe emotional pressure both by Court staff and the Magistrate at Rakiraki and a considerable portion of the local population. I was told by the Appellant today that her husband could not appear before me because he was attending an examination by a psychiatrist in the St. Giles Psychiatric Hospital.

The application to have the cases transferred from Rakiraki was made under Section 70 of the Criminal Procedure Code which provides so far as relevant to this case that whenever it is made to appear to the Chief Magistrate-

(a) that a fair anartial inquiry or trial cannot be had in any magistrates' ces' court;

(b) ...............

(c) ...............

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> (d) that an order under this section will tend to the genconvenience of the parties ties or witnesses; or

(e) that such an order is expedient for the of justice or is required by any provision of this Code;

he may order -

(i) ...............

(ii) that any particular criminal case or class of cases be transferred from a ma a magistrates' court to any other magistrates' court of equal or superior jurisdiction.

The application was opposed both before the Chief Magistrate and on this appeal ongrounds that the State prop proposed to call fifteen witnesses and the hearing of the charges was likely to take at least three days. It was submitted that this would involve the State in transporting these witnesses from Rakiraki either to Ba approximately one hour's drive or Tavua a little under one hour's drive and that such cost would be uneconomic and unjustified.

The learned Chief trate accepted this submission to a large extent but obviously considered there were some mome merits in the Appellants' claim of harassment and general mental pressure brought on them by the Resident Magistrate, the Court staff and some of the local population. He therefore refused to transfer the case from Rakiraki to any other Magistrate's Court but, hoping to meet some of the objections of the Appellants, directed that the charges be heard by a Senior Magistrate at Suva Mr. T. Karunairetnam.

Before me today tcond Appellant stated that although she did not doubt that Mr. Karunairetnam would give here her husband and herself a fair trial as he has never sat in Rakiraki, nevertheless she believed that neither she nor her husband could do themselves justice when giving evidence because of the attitude of the Court staff, the Prosecutor and the local people to them.

I formed the impression after ng Mrs. Wehrenberg that she was very emotionally upset by the Chief Magistrate's decision bion but on the material before me and her submissions I saw no reason to interfere with the Chief Magistrate's decision. Nevertheless I adjourned the hearing briefly to speak to the Chief Magistrate when I asked him whether Mr. Karunairetnam had ever presided in the Rakiraki Court or knew anybody in Rakiraki. The learned Chief Magistrate told me that Mr. Karunairetnam was a civil Magistrate who had been based only in Labasa and Suva.

I personally had no doubt that the Appellants would not receive a fair trial before Mr. Karunairetnam and when I returned to the Bench gave these reasons for dismissing the appeal.

The charges are due to be heard in the Rakiraki Court on 24th Septembe6 and the Chief Magistrate rate told me that he would direct Mr. Karunairetnam to go there on that date for the hearing. However in view of Mrs. Wehrenberg's statement that her husband would be attending for psychiatric treatment this morning I directed that the matter be adjourned for mention on the 19th of September but that the Appellant file and serve a medical certificate from the doctor treating Mr. Wehrenberg as to his fitness or otherwise to give evidence on the 24th of September. If the doctor is of the opinion that Mr. Wehrenberg is not fit to give evidence then I will fix another date for the hearing when the case resumes.

JOHN E. BYRNE
JUDGE

Haa0061j.96s