Statement of Offence
RAPE: Contrary to Section 149 of thal Code Act 17.
Particulars of Offence
RAJNESH RAJESHWAR PRASAD s/o JAGDISHWAR PRASAD, on the 1st day of February 2001 at Nasinu in the Central Division had unlawful carnal
knowledge of ANNIES ANSHU WILLIAM d/o CHARLES WILLIAM without her consent.
The Appellant elected Magistrates Court trial, and in due course, after first call on 5th of February 2001, the matter was fixed for
hearing for the 24th and 25th of April 2001. On the 24th of April, counsel for the accused said that only three statements made by
the complainant to the police, had been disclosed to him. He said that she had made a fourth statement, on 21st March 2001 to one
PC 1347 Nikul, which statement had not been disclosed. State Counsel said he did not have the statement and that all disclosure had
been made.
The trial proceeded before the Suva Magistrate’s Court at 11am on the say. Counsel for the accused made an application to stand the
case down for an hour to “uplifuplift statement.” The Court gave him one minute. The hearing then proceeded. The prosecution called
the complainant. She gave evidence of the alleged rape. She was rigorously cross-examined. The record of the cross-examination encompasses
25 pages of the court record. In the course of her evidence she said she gave several statements to the police including one on the
22nd of March 2001. She said she had maintained her account of the alleged rape. Later in her evidence, she said she was not sure
how many statements she had made nor when she had made them.
During cross-examination of the complainant, counsel for the Defende an application for disclosure of a statement of 21/3/01. The
prosecution said it did notd not have it. Counsel asked for the Investigating Officer to be called to verify that there was no such
statement. The learned Magistrate ruled on the application, saying that the application was for disclosure and that the prosecution
had already said it did not have the statement. The application was refused.
The trial proceeded and continued on 25th April 2001. It waourned after the complainant’s evidence to 27th April 2001 for continuation.
On the 27th ofth of April, the prosecutor was ill, and the trial was then adjourned to 7th May 2001. The prosecution called six further
witnesses including Acting Corporal 1321 Chetty. He was not asked in the course of cross-examination, whether he was aware if the
complainant had made a statement on 21st March 2001, and why if such statement did exist, it had not been disclosed.
The prosecution closed its case. Counsel for the accused made a submission of no case to answer. The submission was rejected, and
thrned Magistrate called upon upon the accused to elect his option under section 211 of the Criminal Procedure Code. The accused gave sworn evidence. At the end of his evidence the court adjourned to 18th June 2001 which was a public holiday. That
date was vacated on 8th June 2001 and adjourned to 27th and 28th of June. Counsel filed the appeal on the same day (the 8th of June)
on the following grounds:
a) &nbssp; &nbssp; &nbp;&nbs;   &nbsspan>That eae learned Mned Magistrate erred in law and facts when she refused to adjourned
the matter to enable the Appellant to properly prepare his defence.
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b) p; &nnsp;&&nsp;&nnbsp; &nsp; ;&nbpp; Tpan>That that the learned Magistrate erred in law and facts when held that there wcase swer st thellanpan> &-GB> nbsp; c)&nbssp; &nnsp;&&nsp;&nbp;;&nbpp;&nbp;
d) &nbbsp;& &nsp; &nsp; &nnbp; &nbbsp; Tpan>That the learned Magistrate erred in law and facts when she failed to allow the Appellant adjournment to obtain a statement given
by tmplaito thice in contradiction of her evidence ence in coin court.
e) p;&nbbsp;&nsp; &nsp; p; &nbbp; &nbp;
Interlocutory Appeals
In 1998, section 308 of the Criminal Procedure Code was amended to alnterlocutory appeals. Section 308(8) now reads, inter alia.
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “An order by a court in a case may be the subject of an appeal to the High Court whether or not the court has proceeded to a conviction
in the case.”
The Fiji Court of Appeal in Ratu Ovini i -v- The State Criminal Appeal AAU0001 and 0003 of 1999S, at page 7:
“In the new subsection 308(8), the legislature made it clear that an ‘order’ can be appealed against ugh there has been no conviconviction.
Obviously this subsection could apply in a situation where an accused has been found guilty but discharged without conviction - a
not uncommon fate for first offenders on less serious charges, for example. But the words of the amendment are not restricted to
those sorts of situation. They enhance s.308(1) which speaks of any ‘order’, a word which one interpretation had restricted to final
order. The opening words of s.308(7) reflect the notion that the categories of sentence and order embraced by s.308(1) are wide.
We see no warrant for reading down the statute and hold that this order in question of the Chief Magistrate (i.e. the order refusing
to disqualify himself) is susceptible to an appeal under s.308 of the CPC, even though it was made in committal proceedings.”
That deals with jurisdiction. Of course the danger is that section 308(8) could be used to delay criminal proceedings, or to fragment
the trial. In Bokini the Court of Appeal had this to say about that risk (at p.7):
“We are not impressed with the ‘floodgates’ argument that interlocutory appeals in criminal matters will ise because of this interpreerpretation.
We have sufficient faith in High Court Judges to deal swiftly and severely with frivolous appeals against Magistrates’ interlocutory
orders, brought merely to buy time or to obstruct the criminal process.”
In considering this appeal I take this rider into account, particularly in the light ote Counsel’s submission that the petition was
filed to gain gain time and was frivolous and an abuse of the process.
Refusal to Grant Adjournment
The Appellant says that he was not given “adequate time and facilities to prepare a defence” as guaranteed under section 28(1) ( the
Constitution. He furthfurther says that the learned Magistrate did not write a proper ruling on the issue, and that the ruling was
therefore not judicially made.
The record shows that submissions on the ase to answer” submissions were heard on 18th May 2001. The ruling was delivered on 7th of
h of June 2001. Before adjourning on 18th May 2001, the learned Magistrate told counsel “Adjourned to 7/6/01 - Ruling and continuation.”
After the ruling was read out, counsel for the accused said - “Seek a continuation date calling 6-8 witnesses.” The prosecution objected
saying -
“Understanding no case to answer Defence should be ready to proceeediately.”
The Court then stood the case down to the afternoon for contion.
In respect of this ground of appeal therefore a number of pertinent ma arise from the court record. The Defence had from 5th February
2001 (when the accused was was first represented by counsel) to 7th June 2001 to prepare its defence. During the trial there were
several adjournments. On the day the prosecution case closed, the learned Magistrate told counsel that the ruling and continuation
was set for 7th June. On the day the ruling was delivered presumably some time in the morning on counsel’s application for an adjournment
to get his witnesses, the learned Magistrate adjourned to 2.30pm to allow him to get his defence case prepared. All these matters
are apparent from the court record, and although the learned Magistrate did not give reasons for adjourning to the afternoon rather
than to another day, her reasons for doing so are easily discernible from the court record.
In the circumstances the decision of the Magistrate to give the accused a short adjournment only, is neither unfair nor unreasonable.
Nor is it in breach of Constitution. Finally I note that on the 7th of June, only the accused’s evidence was taken. The trial was
adjourned to another day, and the accused thereafter had ample time to get his other witnesses.
For these reasons this ground fails.
Ruling on ‘no case to answer submissions’
&nGB>
At the hearing of this appeal, counsel said he would not pursue this grou appeal.
Failure to provide copy of transcript
There is of course no right under the Criminal Procedure Code, to a copy of the court record, s and until the magistrate has received a copy of the petitpetition of appeal (section 312 of the
Criminal Procedure Code). In all the other circumstances the decision of the magistrate to provide copies of the record to counsel, is a discretionary matter.
All too often, in Fiji, it depends on typing resources. In this case counsel said that he applied for a copy of the record relating
to the doctor’s evidence to be supplied to him. There is no record of such an application, but if it was made, it was clearly a matter
for the Magistrate to decide whether or not she was able and/or willing to provide it. This ground fails.
Disclosure
The Appellant says that he should have been given an adjournment to ascertain the whereabouts of the statement of the complainant
which, he says, was made on 21st March 2001. The prosecution says that no such statement exists, and that it cannot disclose what
it does not have.
Undoubtedly, the State has a common law and constitutional duty to discloserelevant material to the Defence. Undoubtedly, all previousvious
statements made by the complainant are relevant, and must be disclosed. However, the only evidence on the record that a fourth statement
exists, was the evidence of the complainant that she made a statement on 22/3/01. However she said earlier (on page 23 of the record)
that she could not remember the number of statements she gave the police, and later (at page 44) that she could not remember the
dates of the statements or how many times she made statements.
Counsel made an application for disclosure, and the learned Magie ruled that she would not order disclosure. Counsel also asked for
an order that PC Chettyhetty disclose the statement. That was also refused. This was not an application for an adjournment, it was
an application for disclosure.
It was an application which was rightly refused by the learned Magistrate. If the Defence claims a statemeists, which the prosecutionution
denies, the Defence can either cross-examine the investigating officer on the issue, or subpoena the Station Officer or the interviewing officer to produce the statement under subpoena. If the police continue to deny
the existence of the statement, that is the end of the matter, and the Defence must be content to wait for closing submissions to
suggest to the court that a statement did exist.
If the police produces the statement, then the Defence may make an application to recall the witness to put the new statement to him
or Such an application is unls unlikely to be objected to by the prosecution, because it gives the witness a chance to explain the
statement, and is also usually in the interests of justice. However, when PC 132 Chetty was called to give evidence, Defence Counsel
never asked him if another statement existed. He was asked about a plain statement recorded about a complaint that the complainant
was missing from home, and he verified DMFI(1) as being the statement taken. However, it appears that this is not the statement requested
by Defence Counsel, and that another statement about the alleged rape, is the one required by the Defence to be disclosed. It appears
that PC Chetty was not asked to produce the “fourth statement.” The other alternative is to call the alleged recorder, one PC Nilesh
of Nasinu Police Station. The Defence has not closed its case and can subpoena the officer and ask him to produce the fourth statement.
He has not done so, but instead filed this appeal.
I find no grounds to finding that the learned Magistrate erred in refusing to order disclosure. This appeal is prematur misconceived.
This ground ound also fails.
Conclusion
For the reasons given above this appeal is unsuccessful. The court file and record will be ned to the Magistrate’s Court forthwith
to allow the learneearned Magistrate to set a date for continuation.
Nazhat Shameem
JUDGE
At Suva
11th September 20pan>
Haa0051j.01s
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