State v Taoi [2000] FJHC 169; Criminal Appeal 24 of 2000 (21 July 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 24 OF 2000
(Navua Mag. Ct. Crim. Case No. 125 of 1999)

BETWEEN:

THE STATE
Appellant

AND:

JOKINI TAOI
Respondent

Ms. Resina Senikuraciri for the Appellant
Mr. Robo Matabalavu for the Respondent

JUDGMENT

On 22 December 1999 the accused/respondent appeared before the learned Magistrate A. Katonivualiku Esq. for hearing on a charge of causing death by dangerous driving contrary to section 238(1) of the Penal Code Cap.17.

The Particulars of Offence reads as follows:

JOKINI TAOI on the 8 day of April 1999, at Navua in the Central Division, drove a motor vehicle on Queens Road at Qaributa, in a manner which was dangerous to the public, having regards to all the circumstances of the case thereby caused the death of AME NAIKA TABUA.

On the day of hearing although the witnesses were subpoenaed only one prosecution witness was present. The Prosecutor made an application for adjournment but this was refused by the Court. The learned Magistrate then proceeded to acquit the accused.

At the hearing of the appeal the learned counsel applied for leave to withdraw item 3 of the Petition of Appeal which was granted. She proceeded to argue item 4 which is the only Ground of appeal, that is:

"That the trial Magistrate had failed to exercise his discretion judicially to grant an adjournment to allow the Applicant time to muster its absent witnesses".

This is an appeal against the refusal to grant an adjournment culminating in the acquittal of the accused.

Appellant’s submission

The learned counsel for the appellant referred the court to various sections of the Criminal Procedure Code viz. s.198(1), s.203(1), s.130 and s.210 which provide for dismissal of charge or adjournment, dismissal of charge, issuing of warrant and no case to answer respectively. She also cited a number of cases stating that the learned Magistrate has to exercise his discretion judiciously.

She submitted that here the Magistrate acquitted the accused on the very first hearing day as the prosecution could not further its case in the absence of all witnesses. She said a warrant could have been issued against the witnesses as they were subpoenaed as provided under s.130 of CPC. The prosecution was not given the opportunity to call evidence. Counsel submits that the Magistrate should have exercised his discretion to grant an adjournment of the case or to dismiss but not to acquit.

Respondent’s submission

After the refusal of adjournment counsel applied for respondent’s acquittal. The reasons for refusal of adjournment has been stated by the Magistrate whereupon the charge was read to the accused who denied the charge; no evidence was offered when under s.210 of CPC the accused was acquitted of the charge.

The learned Counsel for the appellant referred to sections 200, 201, 202 and 206 of the Criminal Procedure Code which set out the Court’s powers. As far as adjournment is concerned he said that this is a matter of judicial discretion.

He referred the Court to a number of cases; he said that in the case of Robert Tweedle Macahill and Reginam (Cr. App. No. 43 of 1980 FCA) it is stated that the principle on which Court operates is that the appellate Court should be slow to interfere with the exercise of discretion unless it appears that order (refusing adjournment) defeats rights of parties altogether and would result in injustice to either party.

Counsel submitted that the order for acquittal was correct in law bearing in mind all the circumstances and that the learned Magistrate has exercised his discretion judicially.

Consideration of the appeal

This is an appeal against the acquittal of the Respondent as a result of non-appearance of all the witnesses for the prosecution although subpoenaed. Only one witness was present.

An application for adjournment was made but this was refused. In doing so the Magistrate stated his reasons as follows:

All Prosecution witnesses were subpoenaed and only one civilian witness is here. Not even a Police witness is present either. CPC (Amendment) Act 1998 Section 202(1) states that if the case is set down for hearing it must go ahead. Subsection (2) states, it is to be adjourned, reason to be written down. The inexcusable absence of any witness (es) or the Defence Counsel is not a good cause to adjourn the case. In this case, all witnesses were subpoenaed, no one sent any apologies for being not present today. Seriousness of the case is not a bar-[] [to Section 202(1) (2) CPC (Amendment) Act 1998.

The issue before the Court is whether it was a proper exercise of discretion on the part of the learned Magistrate refusing an adjournment and acquitting the accused.

Through no fault of the Prosecution the case could not be proceeded with. The witnesses were on subpoena and the proper course was to order bench warrant against them on the facts and circumstances of this case rather than follow the procedure which the Magistrate followed and then acquitting the accused under s.210 of the CPC which provides:

"s210. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused". (emphasis added).

In the judgment which I delivered in State and 1. Kelemedi Lagi 2. Apolosa Navunisaravi (Crim. App. No. 15 of 1996) I dealt with this very issue when I held that s210 under which the accused was acquitted is not applicable in these circumstances and that the section covers acquittal of accused where there is no case to answer after evidence has been adduced.

The learned Magistrate should have used other sections of the Penal Code referred to hereabove to dismiss the charge or discharge the accused. Also s130 of the C.P.C. could have been used to compel the attendance of the witnesses by issuing bench warrants against them since they were subpoenaed.

On the issue of correctness in refusing to grant the adjournment sought the Court of Appeal in Macahill (supra) said:

Such a refusal is a matter of law. The granting of an adjournment is always the exercise of a judicial discretion. Although the Court of Appeal is slow to interfere with the exercise of that discretion, yet, as is said by Atkin L.J. in Maxwell v. Keun (1928 1 K.B. 645, 653 CA):

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge 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."

Similar order, overruling a judgment denying an adjournment, were made in re M (1968) 1 W.L.R. 1897; Priddle v. Fisher (1968) 1 W.L.R. 1478; and Royal v. Prescott Clarke (1966) 1 W.L.R. 788.

The order made herein certainly "defeats the rights of the parties altogether".

As I said in Kelemedi Loga (supra) the Magistrate has certain discretionary powers which he should exercise judicially. This he has not done. He should not forget that the alleged offence is committed against the State and not against the individual although there is the complainant in this case who failed to turn up. If the procedure adopted in this case by the learned Magistrate was accepted then complainants will fail to appear for reasons best known to themselves and the accused persons will go free without any punishment.

At this juncture it is pertinent to note the following paragraphs in this context on the issue before me, from the judgment of the High Court of Uganda sitting in appeal in the case of Arvi Ratilal Ganji, 6 U.L.R. 23 (quoting from Uganda v. Milenge and Another 1970 EALR p.269 at 274):

"The case was fixed for hearing and on the hearing day an Inspector of Police appeared for the prosecution. The main prosecution witness, although warned to attend, failed to appear in time at the trial and the Magistrate after calling upon the prosecution to prove their case which they could not do, proceeded to acquit the accused. The two judges on appeal held that the magistrate’s proper course was either to have adjourned the case or to have dismissed the charge under the provisions of s.197 of the then Criminal Procedure Code. Section 197 is similar to s.202 in the present Criminal Procedure Code. In their judgment the court state:

‘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.’

"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 complaint against him being wholly unheard."

For these reasons the magistrate should have either dismissed the charge and discharge the accused, but not to acquit. In this regard I refer to the following passage from Ganji (supra) which states the position clearly with which I agree:

"If the learned magistrate had rightly assessed his powers and duty we think that he would have refused to proceed to what 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, I hold that the acquittal was not a proper exercise of Magistrate’s discretion in view of the serious nature of the offence where death has occurred. I set aside the order for acquittal and order that the case be remitted to the Magistrate’s court for another Magistrate to proceed in accordance with the law after a fresh plea is taken.

The appeal is allowed.

D. Pathik
Judge

At Suva
21 July 2000