State v Talawadua [2002] FJHC 148; HAA0032J.2002S (16 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0032 OF 2002

Between:

THE STATE
Appellant

And:

SEMI TALAWADUA
Respondent

Hearing: 8th August 2002
Judgment: 16^th August 2002

Counsel: Mr G. Allen for Appellant
Mr A. Wolf for Respondent

JUDGMENT

On 21^st March 2002, the Respondent was acquitted, in the Suva Magistrates Court, of the following charges:

COUNT 1

Statement of Offence

CARELESS DRIVING: Contrary to sections 37 and 85 of the Traffic Act, Cap. 176.

Particulars of Offence

SEMI TALAWADUA on the 8^th day of August, 1999 at Nasinu in the Central Division drove a motor vehicle registration number GM 585 on Kings Road, Laqere without due care and attention.

COUNT 2

Statement of Offence

TAKING A MOTOR VEHICLE WITHOUT THE OWNER=S CONSENT: Contrary to section 40 of the Traffic Act, Cap. 176.

Particulars of Offence

SEMI TALAWADUA on the 8^th day of August, 1999 at Nasinu in the Central division took and drove away a motor vehicle registration number GM 585 without having the consent of the owner or other lawful authority.

The Director of Public Prosecutions appeals against the acquittals upon the following grounds:

(a) that the trial Magistrate erred in law and failed to exercise his discretion fairly and judicially when he refused to grant an adjournment;

(b) that the trial Magistrate erred in law when he stated that he could not entertain a part-heard trial;

(c) that the learned Magistrate erred in law when he invoked section 210 of Criminal Procedure Code to acquit the Respondent.

In support of the appeal, the Appellant made an application to adduce evidence (originally an application to supplement the record), and filed the affidavits of Sofia Shah, dated 2^nd May 2002, Maciu Nacaucaulevu of 8^th July 2002, a further affidavit of Sofia Shah dated 8^th July2002, and the affidavit of Imeri Simpson of 11^th July 2002. The Respondent filed the affidavit of Semi Talawadua dated 18^th June 2002 and of Abhay Kumar Singh of 30^th July 2002.

The Respondent objected to the adducing of further evidence.

History of the Case

The offences were allegedly committed on the 8^th of August 1999. The case was called on the 7^th of March 2000 in the Suva Magistrates Court. It appears that the Respondent had not been served with summons, and the matter was adjourned four times Afor service.@ The Respondent finally appeared on 12^th October and pleaded not guilty. The case was adjourned to 20^th November 2000. The prosecution said that full disclosure had been complied with. The case was adjourned to the 12^th of January 2001 for hearing. On the 12^th of January, the Respondent who had hitherto been unrepresented, was represented by counsel. The prosecution said that they needed to send the file to the DPP=s Office. Defence counsel did not object, and the case was adjourned to the 6^th of April 2001 for mention. On that day, the case was further adjourned to 23^rd of April 2001 because the police file was still with the DPP. On 15^th May a hearing date was set, for 3^rd December 2001. On the 3^rd of December, counsel for the Respondent asked for an adjournment because he was busy in the High Court. The prosecution said that the witnesses were present, but they consented to another date. The case was adjourned to 22^nd March 2002.

On 22^nd March all parties were present. The Defence was ready to proceed. The prosecutor, Ms Shah is recorded to have said:

AWe=ve yet to disclose witness statements. We=ve contacted Defence counsel he said he had no instructions from his client. Ask for part-heard. I had my witnesses the last time, but the Defence was not ready to proceed. One witness is in Australia, one is sick and Sgt. Uraia is in a meeting with Police Commissioner. Ask to disclose statements to Defence.@

Mr Singh, counsel for the Defence is recorded to have said:

AThe sick sheet is not in compliance with Criminal Procedure Code.@

The learned Magistrate then ruled as follows:

AThis matter had been set for hearing 3 times. Twice the prosecution couldn=t proceed and once the Defence counsel sought adjournment as he had High Court trial. Further the case is well over 12 months and reason offered by Prosecution on one witness having meeting with Police Commissioner cannot be good cause for the Court to accept. I therefore refuse to grant part-heard or any further adjournment in this case and I order so accordingly.@

The prosecutor then applied for withdrawal of Athe charge under section 201(2)(b)(ii) of the Criminal Procedure Code. I can=t make prima facie case.@ The charges were then read again to the Respondent. He pleaded not guilty. The Court then ruled:

AThe Prosecutions can=t proceed to make a prima facie case and are asking for withdrawal of charges under Section 201(2)(b)(ii) of the Criminal Procedure Code. I refuse to withdraw the charges for reasons stated earlier on and order that the cases be dismissed and accused be acquitted on both counts under section 210 of the Criminal Procedure Code.@

The additional evidence

Section 320(1) of the Criminal Procedure Code provides:

AIn dealing with an appeal from a magistrates= court the High Court, if it thinks additional evidence is necessary, may either take such evidence itself, or direct it to be taken by a magistrates= court.@

The common law principles relevant to the exercise of this discretion are that the court must ask why that evidence was not adduced in the lower court, whether the evidence is relevant to the appeal, whether it is admissible evidence and whether the evidence is credible.

The contents of the first affidavit of Sofia Shah, dated 2^nd May 2002, refer to the history of the case from the 12^th of January 2002. Paragraphs 9, 10, 11, 12, 13 and 14 read as follows:

A9. That on 3/12/01 the defence counsel stated he was busy in High Court. He also stated that he had not received full disclosure from prosecution. Hearing date was fixed for 22/03/02.

10. That on 3/12/01 all prosecution witnesses had turned up in court.

11. That another set of disclosures were made and defence counsel was contacted by the Director of Public Prosecutions Office but he refused to receive the disclosures saying that he had no further instructions from the accused.

12. That the accused could not be located and therefore full disclosures could not be done. The disclosures were tried to be served in Court on 22/03/02 but Abhay Singh objected to it and said he wanted to go to trial with just the one witness statement which was disclosed to him (meaning the prima facie case to be shown with just one witness who had given instruction for 2 witness statements to be recorded). The Court said this would be fair to the Defence.

13. That three of prosecution=s witnesses were not present but were available on Monday the 25/03/02. There were 12 witnesses in this case - one had migrated to Australia. However the evidence of the remaining eleven witnesses was sufficient. Three of these were not available on 22/3/02 however they could come to court on Monday the 25^th of March (one in Labasa for a Conference and one in Australia for a conference and one in a meeting with the Commissioner and could be available later during the day). The complainant for count 1 came a bit late for he went to attend a funeral.

14. That all the other witnesses were present and could have proved the second charge that is using of motor vehicle without lawful authority. The first charge of careless driving could not be proved without the first witness who came late unfortunately.@

The remaining parts of the affidavit refer to matters in court which are already on the court record. The evidence of attempts to disclose by the police and the DPP=s Office is also the subject of the affidavits of Imeri Simpson and of Maciu Nacaucaulevu. Both affidavits refer to repeated attempts to serve Mr A.K. Singh with further witness statements on 25^th February 2002, and to information received from Mr Singh and his wife that no further instructions had been received to appear for the accused. This is disputed by Semi Talawadua who states that AI wish to state that I have enquired from my solicitor=s office and I have been advised that at no time DPP=s Office contacted regarding further disclosure in my case.@ He also states that Amy solicitor only informed the court he objected to any adjournment, as on 20^th November 2000, I provided with full disclosures.(d) My solicitor also informed the court that he wanted to proceed with the matter with 5 witness statements disclosed to him.@

Mr A.K. Singh in his affidavit denies ever being approached by Police Constable Imeri Simpson for disclosure. At paragraphs 9, 10 and 11 he states:

A9. That I deny that I was approached or contacted by Police Constable Imeri Simpson to serve disclosures of this case.

10. On 18^th March 2002 I was in Nausori and Suva Magistrates Court and I was never approached or contacted by phone to serve disclosures at my office.

11. That on 22^nd March 2002, I was ready to proceed and at the material time prosecution had only one of the witnesses whose disclosures was given to me.@

There is therefore dispute as to whether attempts to disclose further witness statements had been made on the defence. There is no dispute, that on the day of the hearing, the defence was ready to proceed with those witnesses in respect of whom earlier disclosure was made.

At the hearing of this appeal, counsel for the State conceded that these affidavits are of marginal relevance to the appeal itself. This is an appeal against acquittal. The State says that having refused the prosecution=s application to withdraw the charge/s, the Magistrate erred in proceeding to dismiss the case and acquit the accused. The Respondent says that the Magistrate was right to proceed to acquittal because the history of the case and the record, show that the prosecution, after long delays, were not ready to proceed and could not make a prima facie case. Counsel for the Respondent agreed that the affidavits added very little to the appeal.

I agree with counsel. Even if the prosecution did attempt to disclose further statements to the defence without success, the fact remained that the prosecution was only in a position to call some of its witnesses on 22^nd March. Although Mr Singh concedes in his affidavit that he was not prepared to proceed with non-disclosed witnesses, the Magistrate made no reference to the non-disclosure in his rulings. In fact, non-disclosure of statements does not prevent the prosecution from calling witnesses. The defence may seek an adjournment on the ground that witness statements, were not disclosed and that there is resulting prejudice to the accused. The application may be granted by the Magistrate, who would have heard the reasons for non-disclosure, and the nature of the evidence not disclosed. However the application to adjourn, would be the defence=s, not the prosecution=s. The result might be to proceed without adjournment (if the magistrate finds there is no prejudice, or if the defence waives its right to disclosure), or to adjourn to another day to allow the defence to read the statement. Non-disclosure cannot lead to an acquittal. The learned Magistrate therefore quite rightly ignored the issue of disclosure. It follows that the affidavits are of no relevance to this appeal.

The same is true of the additional evidence about the whereabouts of prosecution witnesses. The record already contains some of this information, and further evidence about the ability of the prosecution to proceed is irrelevant to the question of whether the accused could be acquitted after a refusal of the withdrawal of charges.

The affidavits may not be adduced as evidence.

The grounds of appeal

At the hearing of this appeal State counsel submitted that there was no application for an adjournment, by either party. Ground (a) would therefore appear to have been abandoned.

Ground (b) is that the learned Magistrate erred when he said that he could not entertain a part-heard trial. The record shows that the prosecution asked to proceed Apart-heard@. Counsel said that the prosecution witnesses had appeared on the last hearing date but the Defence was not ready. She said that one witness was in Australia, one was sick and one was in a meeting with the Police Commissioner.

The learned Magistrate ruled that the hearing dates had been adjourned thrice, the case was an old one and the reason offered by the prosecution was not Agood cause.@ He then ruled: AI therefore refuse to grant part-heard or any further adjournment in this case and I order so accordingly.@

The learned Magistrate seems to have misunderstood the submissions of State counsel. State counsel was not asking for an adjournment. If, having come to the end of her witnesses, she then asked for an adjournment to another day, and the learned Magistrate then refused that application (having exercised his discretion judicially), that procedure would have been unexceptionable. To treat the prosecution=s submissions that they could only proceed with some of their witnesses, as an application for an adjournment was misconceived. It forced the prosecution to attempt to withdraw one of the charges on the ground that the available witnesses could not establish a prima facie case. No opportunity was given to the prosecution to proceed on the remaining count.

The Court of Appeal in Rajesh Chand & Shailesh Kumar -v- The State Crim. App. No. AAU0056 of 1999S, considered a situation where a magistrate refused to proceed on a Apart-heard@ basis, saying that he had been instructed by the Chief Magistrate not to commence any part-heard cases for administrative reasons. The accused was then acquitted. That appeal was against an acquittal following the refusal of an application for adjournment. However the Court=s findings on the issue of Apart-heard@ hearings are relevant. At page 4, the Court said:

AIt is apparent from his decision that we have reproduced above that he was primarily concerned at the administrative inconvenience and cost to the court of part hearing the case, and the Magistrate then being required to return to Tavua to complete the hearing. This is not a proper reason for denying the State the right to have the charges heard and determined by the Court. We accept that financial considerations, and the convenience of the Court can be taken into account in determining how and when a case is to be heard, but that can never over-ride the interests of justice. In the present case, if these factors were considered to be relevant, with the result that a part-hearing was inappropriate, the correct course was to adjourn the hearing to a date and time when it could be properly heard and determined. By refusing either to part-hear the case, or to adjourn it, the Magistrate=s decision resulted in an injustice to the State.@

Counsel for the Respondent submits that the Magistrate=s decision was proper given the history of the case, and the lack of information provided to the Court by the prosecutor. However, the significant difference between this case and State -v- Samuela Suguturaga Crim. App. HAA0001.2002S, is that in that case it was conceded that the prosecution had applied for an adjournment, and having refused that application the Magistrate had called upon the prosecution to prove its case. The prosecution chose not to call any evidence, and the acquittal followed.

In this case, there was no request for an adjournment. The record shows that both prosecution and defence were ready to proceed. Nor did the Magistrate give the prosecution a chance to call the available witnesses. The history of the case, and the lack of preparation of the prosecution would only have become relevant when, and if the prosecutor asked for an adjournment, having exhausted all available witnesses. In refusing to proceed with the trial when both parties were ready to proceed, on the only ground that he did not wish to Apart-hear@ the case, the learned Magistrate was in error. This ground of appeal succeeds.

The third ground of appeal is that the learned Magistrate erred in acquitting the Respondent under section 210 of the Criminal Procedure Code. It is not clear why the learned Magistrate treated the prosecutor=s application to withdraw Aa charge@ as an application to withdraw both. Further, having refused that application, he should then have called upon the prosecution to call its witnesses. He did not do so. It is not clear why plea was taken again, but the dismissal of the charges under section 210 of the Criminal Procedure Code was obviously wrong when the prosecution had not been given a chance to prove its case.

Section 210 of the Criminal Procedure Code provides:

AIf 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.@

Of this provision and the preceding section Pain J said, in DPP -v- Vikash Sharma and Others 40 FLR 234, 235:

AThe procedure for the hearing is contained in section 209. It provides that the court Ashall proceed to hear the witnesses for the prosecution and any other witnesses.@ In this case the Magistrate should have advised the parties that he was proceeding with the hearing and called upon the prosecutor to begin. If the prosecutor then called no evidence section 210 would apply. There would be no evidence to make out a case against the Defendant and the court in terms of section 210 Ashall dismiss the case and shall forthwith acquit the accused@.@

In this case, if the learned Magistrate had called upon the prosecution to begin, the prosecutor would have started to call her witnesses. By failing to take this step, the learned Magistrate erred, and there was a resulting injustice to the State. It should be remembered that it is, in general terms, in the public interest, that charges which are brought before the court, should be heard. This is even more important in cases where there has been delay in the court processes since the laying of the charge. The third ground of appeal is also successful.

Summary

The learned Magistrate erred in refusing to allow the prosecution to commence with its available witnesses, and erred in acquitting the Respondent on the two counts. The acquittals are quashed and the case is remitted to the Magistrates Court for a new hearing date to be set.

Nazhat Shameem
JUDGE

At Suva
16^th August 2002