State v Nabainivalu [1997] FJHC 230; Haa0039d.97s (4 September 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0039 OF 1997

Between:

THE STATE
Appellant

And

SAMUELA NABAINIVALU
Respondent

Counsel: Mr. W. Clark for Appellant
Respondent in person

Hearing: 4th September 1997
Decision: 4th September 1997

ORAL DECISION OF PAIN J

This is an appeal by the State against the dismissal of a charge against the Respondent in the Magistrates Court. The Petition of Appeal refers to the dismissal of the charge and acquittal of the Respondent under Section 198 of the Criminal Procedure Code. That is not correct. The record of the Magistrates Court clearly shows that the learned Magistrate acted under Section 210 of the Criminal Procedure Code.

On 12th September 1995 the Respondent was charged with careless driving under S.37 of the Traffic Act and pleaded Not Guilty. The case was adjourned on several occasions by different Magistrates. However, from 4th June 1996 there were 5 further callings of the case which were all before Resident Magistrate Mr. S.M. Shah. On 28th January 1997 the case was due to be heard by him. The prosecution applied for an adjournment because a police officer witness had not attended Court. This application was opposed by counsel for the Respondent. After deliberation the learned Magistrate granted the adjournment and said "I will set this case specially for 24th March 1997. Parties must be ready to proceed as I am now specially fixing it for hearing for 24th March 1997".

On 24th March 1997 the case was called again before Mr. Shah. The Respondent and his counsel were present. Inspector Vinod appeared for the prosecution and he advised the Court that he was not ready to proceed as he did not have the prosecution file. When asked if there was any reason for this the Inspector replied:

"No reason. I can't explain why the file is not with us. This is not the first time this has happened. The file is missing and the prosecution can't explain it. Seek an adjournment. I leave it to the Court."

Counsel for the Respondent (quite incorrectly) made an application under S.198 of the Criminal Procedure Code for a dismissal of the charge.

The learned Magistrate considered the adjournment application, gave reasons, and refused it. He then proceeded with the hearing by calling upon the prosecution. The prosecutor was unable to call any evidence. The learned Magistrate then acquitted the Respondent.

In acquitting the Respondent in this way the procedure adopted by the learned Magistrate was entirely correct. It has been approved by the Court of Appeal in Macahill v R Criminal Appeal No. 43 of 1980 and also in this Court by such cases as the DPP v Sharma & ors. Criminal Appeal No. 11 of 1994, and DPP v Kalou & anor. Criminal Appeal No. 16 of 1996.

The State submission is that the learned Magistrate should have granted the adjournment. The reason set out in the Petition and argued by counsel is that the case had been listed before the Chief Magistrate on that day. The prosecutor in that Court had the file. That is why the prosecutor before Mr. Shah did not have the file.

The consideration of an application for an adjournment involves the exercise of a judicial discretion. Relevant considerations would include, for instance, the reason for the application, the history of the prosecution (including previous 'adjournments), the conduct of the parties, the nature of the charge, the need for a charge to be heard within a reasonable time and whether the ability of the State to prosecute or the defendant to present a defence will be materially affected or defeated by the granting or refusal of the adjournment.

It is incumbent upon the parties, and particularly the party making the application, to ensure that all relevant matters are placed before the Court.

In this case, the learned Magistrate considered the application for an adjournment judicially on the basis of the information before him. In his decision he referred to the earlier adjournment granted to the prosecution for a similar reason on 28th January 1997, the absence of any explanation or reason from the prosecutor and the fact that a special fixture had been made for the hearing of the case on that day. It is quite understandable and appropriate that he should have refused the adjournment application.

The Appellant relies on other factors that are not in the record and have not been properly put before this Court. Those are the listing before another Magistrate and the file being before the prosecutor in that Court. That would explain why the prosecutor was not ready to proceed with the case before Mr. Shah. However, instead of asking for the case to be stood down briefly to enable him to locate the file, the prosecutor applied for an adjournment without presenting any grounds or reasons. Furthermore, the case had earlier been adjourned by Mr. Shah in the presence of both parties for hearing before him on 24th March 1997. The Respondent and his counsel had been able to attend. The recent history of the case with an adjournment being required on 28th January 1597 and the failure to be ready before the trial Magistrate on 24th March 1997 (as were the Respondent and his counsel) show that there were serious inefficiencies on the part of the prosecuting authority. Counsel submitted that an adjournment should have been granted as the refusal defeated the rights of the prosecution to proceed with the charge. However, the prosecution earlier had that opportunity on 28th January 1997 and because of its own inefficiency was unable to proceed. It must also be remembered that the prosecution had, for various reasons, already been delayed for 21 months. Further, it was a charge of careless driving carrying a maximum penalty (as no previous conviction was alleged) of only a $50 fine.

In all the circumstances there is no reason for this court to interfere with the learned Magistrate's refusal to grant an adjournment in this case. He determined the matter judicially and followed proper procedures in acquitting the Respondent. In many ways the prosecution has itself to blame for the predicament that it was placed in.

The appeal is dismissed.

Justice D. B. Pain

HAA0039D.97S