Prakash v The State [2001] FJHC 29; Haa0008j.2001s (24 May 2001)

Fiji Islands - Prakash v The State - Pacific Law Materials

IN THE HIGH COF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 008 OF 2001S

BETWEEN:

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SUREN PRAKASH

s/o Shiu Prasad

Appellant

AND:

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THE STATE

Respondent

Counsel: Mr M. Raza for Appellant

Mr F. Vosarogo espondent

Hearing: 18^th May 2001

Judgment: 24^th May 2001

JUDGMENT

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On the 20^th of July 1999, the Appellant was charged with the following offence:

Statement of Offence

LARCENY BY SERVANT: Contrary to Section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

SUREN PRAKASH s/o SHIU PRASAD between 1^st day of November and 31^st day of April 1999 at Suva in the Central Division, being a clerk to Carpenters Shipping, stole five containers to the total value of $24,500.00 the property of Carpenters Shipping.

The Appellant pleaded not guilty to the charge on 20^th July 1999, disclosure requiremenre satisfied, and the matter adjourned to 19^th Aup> August 1999 for mention. The case was adjourned again for mention on 19^th August, 23^rd September, 21^st October and 15^th December 1999. A hearing date was finally fixed for 4^th April 2000. On that date defence counsel was in Labasa and the trial did not proceed. The hearing was adjourned to 28^th April 2000. On that day, the prosecution applied for an adjournment on the ground that the accomplice had not been interviewed. The case was adjourned to 8^th June 2000. On 8^th June, the case was again adjourned although no reason was given. It is possible that the reason was the turbulent times then experienced in Fiji. No counsel appeared for the accused. On 17^th July, the case was adjourned to 20^th September 2000 for hearing.

On the 20^th of September, Mr Raza for the Appellant asked for anurnment on the ground that he was involved in an inquiry. Try. The hearing was adjourned to 27^th November 2000. On that day the hearing was adjourned by consent to the 17^th and 18^th of January 2001.

On the 17^th of January the prosecution said:

“Another accused arrested in this matter. We wish to amalgamate charges. We seek an adjournment to do ithave hearing for both. He’l He’ll be appearing on 23/1/01.”

Defence Counsel objected to the adjournment. The learned Magistrate refused the application for adjournment saying that the case had dragged on for some time and that the State knew as early as 28^th April 2000, that there was an accomplice ready to be charged.

The prosecution then applied to withdraw the charge under section 201(2)(b)(ii) e Criminal Procedure Code. The application was allowed. Def. Defence Counsel asked for an acquittal “for want of prosecution”. The learned Magistrate then said:

p class=MsoNormal stal style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> “1. I discharge the accunder section 201(2)(b)(ii).

2. I refuse application for acquittal.”

She gave no reasons for her decision. The Appellant now appeals against that decisiopan>

Grounds of Appeal

The first ground of appeal is that the learned Magistrate erred in law in failing to acquit the Appellant and erred in discha him under section 201(2)(b(2)(b)(ii) of the Criminal Procedure Code. In his submissions, counsel said that once the application for adjournment was refused, the learned Magistrate had no option but to call upon the prosecution to present its case. He argued that the prosecution had no powers to withdraw once the adjournment was refused.

State Counsel submitted that charges can be withdrawn at any time before a final order is made.

Section 201 of the Criminal Procedure Code provides as follows:

“(1) ; The prosecuto may whe cohe consent of the court at t at any time before a final order is passed in any case under this Part withdraw the complaint.: 1"> <

(2) & p; &nsp;&nbssp;&ssp;  p;&nbbsp; span>On any withdwithdrawal as aforesaid -

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(a) &&nsp;;&nspp;&nssp; &nbp; where the withd is l is made after the accused person is called upon to make his defence, the court shall acquit the accused;n> N-GB>&nbsp

(b) &nbssp; &&nbbsp; &nsp; where thh withdrawal is made before the accused person is called upon to make his defence, the cshallect t provs of on 21 its discretion make onee one or o or other ther of thof the following orders:-

(i) &nnsp;&&nsp;;&nspp;&nsspp;&spp; &bspp; an order acquittingtting the accused;

(3) & &nnsp;&&nbp;;&nbp; &nbp; de orischarging theg the accused under paragraph (b)(ii) of subsection (2) shall not operate as a bar to subsequent proceedinainstaccusrson on account of the same facts.”

Section 202 of the Criminal Procedure Code provides:

“Before or during the hearing of any case, it shall be lawful for turt in its discretion to adjourn the hearing to a certain tain 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, and in the meantime the court may suffer the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance, with or without sureties at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned.”

Section 210 of the Criminal Procedure Code provides:

“If at the close of the evidence in suppf the charge it appears to the court that a case is not made out against the accused personerson sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”

The procedure which should be followed following a refusal of an adjournment has now been settled. Although there ome ambiguity about the core correct procedure following the decisions of the High Court in DPP -v- Vikash Sharma (HAA 0011/94) and State -v- Kelemedi Lagi (HAA 0014/96), neither of these decisions had referred to the Fiji Court of Appeal decision in Robert Tweedie Macahill -v- Reg (FCA 43/80).

Scott J in DPP -v- Neumi Kalou & Anr. Crim. App. No. HAA0016 of 1996 said:

“Macahill is quite clear: where the complainant appears sections 198 and 203 can have no cation. In such circumstancstances where an adjournment is refused the Code is mandatory: “the Court shall proceed to hear the case” (S.200). Assuming that no successful application is made under s.201 (and following refusal of an adjournment it is hard to envisage circumstances in which such an application could be successful) then if no evidence is called the court must proceed to judgment under s.210.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Section 201 applications may according to the clearisions of the section, be made by the prosecution at any time. An application under sectionction 201 is only an application. The decision to allow the withdrawal, and to either discharge or acquit the accused, is a judicial decision. In this case, where the application was clearly made to prevent the Magistrate from proceeding to judgment under section 210, the learned Magistrate ought to have given reasons for her decision. Furthermore, the prosecution should always give reasons for the application to withdraw. If the prosecutor does not give reasons, how is the Magistrate expected to exercise his/her discretion judicially?

In this case however, the reason for withdrawing was self-evident. It appears that the trate agreed that she should have a discretion to dischargeharge rather than to acquit thus the grant of the application for withdrawal.

Was the grant justified on the facts? The charge alleges a larceny by st of five containers valued at $24,500.00. The maximum sentence under section 274(a)(i) is ) is 14 years imprisonment. It is clearly a serious offence which might justify a discharge, thus allowing subsequent fresh prosecution. The offence was allegedly committed between November 1998 and April 1999. It was therefore an old matter, which might also have justified an acquittal.

The record shows a number of adjournments sought by both prosecution and defence. Solay was evidently caused by the political difficulties face faced by the country after May 2000. The accused was sick on one occasion, counsel was unavailable on several occasions and the court appears to have been unavailable on one occasion. It is therefore difficult to apportion blame for the delay. Clearly however the prosecution declared an intention to charge the accomplice on 28^th April 2000, but had failed to do so until 17^th January 2001.

Having considered all these matters, the learned Magistrate was justified in allowing a withdrawal to avoid the inevitty of an acquittal after ther the refusal of the adjournment. As a matter of law, she had the power to allow withdrawal. As a matter of judicial discretion, there were sufficient grounds for her to allow the section 201 application. It is unfortunate that the prosecution gave no reasons for the application, and that the Magistrate similarly failed to give reasons. However, I do not consider that any miscarriage of justice occurred, since it is apparent from the record, what those reasons were.

This ground is therefore dismissed.

Ground 2

The second ground of appeal is that the learned Magistrate ought te acquitted instead of discharged. The learned Magistrate had a discretion in this regard. ard. Again, she gave no reasons for her decision to discharge. Presumably she considered the same factors as she did in respect of the application to withdraw. Again, magistrates ought to give reasons for their decisions, even if they are recorded briefly and in note form. I consider, on the facts available on the record, that she decided on the basis of the nature of the offence, that a discharge rather than an acquittal was justified. Certainly those facts would support an exercise of her discretion in this way.

Pathik J in State -v- Suliasi Sivaro Crim. App. No. 0038 of 1999 said that in considering an aption for an adjournment, tht, the presiding judge or magistrate should consider the interests of justice in respect of both parties to the case. He referred to the decision of Woolf J in R -v- Birmingham Justices ex p. Lam & Anor (1983) 3 ALL ER 23, 28 who said:

“When exercising the discretionh they have whether or not to adjourn cases, the justices have to exercise their discretionetion 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 it is an inevitable consequence.”

The same principles apply to the decision tcharge or acquit. They are particularly applicable when the evidence has not been heard andd and where the prosecution has not opened its case. The decision to discharge in all the circumstances was therefore proper.

Counsel referred to the case of State -v- Ilisoni Tokalaulevu Crim. App. No. HAA0026 of 1995 to submit the learned Magistrate had noad no power to discharge. However the order to discharge in that case, which was quashed by the High Court on appeal, was a section 44 “sentence” discharge. In this case, the discharge was ordered properly under section 201 of the Criminal Procedure Code.

This ground is also dismissed.

In summary this appeal is dismissed. The discharge under section 201(2)(b)(ii) of the Criminal Procedude stands.

Nazhat Shameem JUDGE

At Suva

24^th May 2001

HAA0008J.01S