State v Verma [2002] FJHC 3; Haa0039j.2001b (20 May 2002)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0039 OF 2001

Between:

THE STATE
Appellant

-and-

PREET SINGH VERMA
s/o Amar Singh
Respondent

Mr. J. Rabuku for the Appellant
Mr. H. Robinson for the respondent

JUDGMENT

This is yet another appeal by the Director of Public Prosecutions (DPP) against an acquittal by the Labasa Magistrate Court. The following is a brief chronology of events leading up to the appeal:

On 5^th June 2001 the respondent was charged with an offence of Larceny by Servant that is alleged to have occurred 'between 14^th day of February 2000 and 11^th day of April 2000';

On 11^th June 2001 when the case was first called before the Labasa Magistrate Court the respondent tendered a sick sheet and the case was adjourned to 15^th June 2001 for his plea to be taken;

On 15^th June 2001 the respondent appeared with Counsel before the Labasa Magistrate Court and after electing a trial in the Magistrate Court entered a plea of 'Not Guilty' to the charge;

Counsel then requested '(an) early hearing date' and the matter was adjourned to 12^th & 13^th July 2001 for hearing. The respondent's bail was extended. On this occasion the prosecution was represented by a police officer;

On 12^th July 2001 counsel from the DPP's office appeared and advised the court that he was 'not in a position to proceed today' and counsel sought an adjournment on several grounds ('the adjournment application');

The application was vigorously opposed by defence counsel in a lengthy submission before the trial magistrate;

In reply, counsel for the DPP instead of addressing the matters raised by defence counsel, sought to invoke the provisions of Section 220 of the Criminal procedure Code ('CPC') to have the matter transferred to the High Court for trial ('the Section 220 application');

This fresh application was vehemently opposed by defence counsel, who is recorded to have said: "its not prosecution but its persecution' and counsel insisted on a ruling;

In a written ruling delivered later that afternoon the trial magistrate rejected 'the Section 220 application' on the basis 'that the trial had begun' when the application was made and as a result 'the right of the prosecution has disappeared and the application has come too late';

The following day the 13^th of July 2001 the trial magistrate delivered a second written ruling in which he refused 'the adjournment application' and called on State Counsel'........ to proceed by calling its first witness.' To this, State Counsel replied that he had 'no witness to call as none are in court today' and the trial magistrate then records: 'The accused is acquitted.' Immediately State Counsel gave verbal notice of appeal.

The petition of the Director of Public Prosecutions advances the following grounds of appeal:

'(a) that the learned Magistrate erred in law and fact when he failed to exercise his discretion judiciously (in) refusing the appellant's application for adjournment;

and

(b) that the learned Magistrate erred in law in ruling that the powers of the appellant to make an application under Section 220 of the Criminal procedure Code had expired.'

I received and have carefully considered the written and oral submissions of counsels for which I am grateful.

I shall deal firstly with ground (b) ('the Section 220 application') which raises a straightforward question of statutory construction.

Section 220 of the 'CPC' provides:

'it before or during the course of a trial before a magistrates court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court' or' if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions hereinafter contained, and in such case the provisions of section 235 shall not apply.'

(My underlining)

State Counsel in pursuing this ground of appeal writes:

'The above section is clear. The Prosecution can make an application to move a case to the High Court any time before the trial commences. It could be argued then that the prosecution can still make this application on the hearing date and also just few minutes before calling its first witness.'

The submission assumes however that a 'trial' commences only when evidence is being called by the prosecution and not before.

Plainly the trial magistrate disagreed with such a view in so far as he said in his ruling dismissing the application:

'I am of the view that the trial had begum when prosecution made the application for adjournment. It was later on when the application for a S.220 trial was made.'

The ruling does not make entirely clear however when? it is that the trial magistrate considers the 'trial' of the respondent had actually commenced. Was it when he was charged? Was it when he elected trial in the Magistrates Court? Was it when he pleaded 'not guilty' to the charge? Was it when the trial dates were fixed three weeks earlier? Was it just prior to the adjournment application? or is it at some other stage in the proceedings?

Be that as it may be the trial magistrate was firmly of the view that as a matter of sequence,' the Section 220 application' ought to have preceded 'the adjournment application' and, in failing to do so, 'has come too late.'

With respect the sole condition precedent to an application being made by the prosecution under Section 220 of the 'CPC' is that the application must be made 'before the commencement of the trial' and it is only when an application is made after the 'trial' has commenced that it can be said of the application that it '...... has come too late'.

When then does a trial commence in the magistrate Court? State Counsel submits that the 'trial' commences when the prosecution calls its first witness. Respondent's counsel, on the other hand, orally submits that, in the present context, 'the trial commenced when the magistrate demanded that the prosecution produce its evidence' but that would mean that 'Section 220 application' was made within time. Alternatively, Counsel submitted that the trial commenced when the accused entered a 'not guilty' plea to the charge.

Neither counsel was able however, to refer to authorities or statutory provisions that supported their respective submissions.

I turn then to consider the provisions of the 'CPC' to see if these might assist in answering the question 'When does the trial commence in the Magistrate Court?' Proceedings in the Magistrate Court for Penal Code offences are normally instituted by the laying of a charge before the Court and requesting a summons [Sections 78(4) & 79(1)], or by physically producing the accused under arrest before the Court together with a formal charge [Sections 78(1) & (5)].

When the accused appears before the Court either in answer to the summons or under arrest, the charge is explained to him and he is required to plead to it [Section 206 (1)].

If the accused pleads 'guilty' to the charge' his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon him...unless there shall appear to it sufficient cause to the contrary' [Section 206 (2)].

If the accused does not admit the charge as occurred in this case, or refuses to plead to it then the Court shall enter a 'not guilty' plea and 'shall proceed to hear the case' [section 206(3) & (4)] in accordance with Section 209 viz. 'hear the witnesses for the prosecution and other evidence (if any).'

The predecessor of Section 209 was referred to and explained by Fiji Court of Appeal in Robert Tweedie Machill v. R. Criminal Appeal No. 43 of 1980 (unreported) when the Court said (at p.6):

'This section overcomes a difficulty expressed at the Bar because it applies not only to the actual hearing of witnesses but so, by the use of term '(if any)' it covers the situation where no witness is called. Whether evidence is called for prosecution or not the Court must proceed to judgment under section 200 (now section 210). If witnesses are called then sections 201 and 202 (now 211 & 212) apply and judgment will be given under section 206 (now section 215). The Code is thus complete and there is no failure to provide for the case where the prosecution does not call evidence.'

From the above analysis it is clear that before the Magistrate Court can 'proceed to hear a case' there must be a plea entered by the accused on a charge proferred against him/her. Up till that moment the accused has not 'put himself upon the country for trial', to adopt the words of Section 277 of the 'CPC' dealing with trials in the High Court, nor is it known before then, whether or not a hearing will take place where evidence will need to be led before the Court.

It may be noted that the provisions of Part VI of the 'CPC' relates, according to the sub-title, to 'the hearing and determination of cases' in the Magistrate Court and Section 220 occurs under the sub-title 'limitations and exceptions relating to trials in the Magistrate Court.' Furthermore the expression in Section 220 is: '..... commencement of the trial' and not commencement of the 'hearing'. This important distinction i.e. between a 'trial' and a 'hearing' appears to have eluded the trial Magistrate and both counsels who argued the appeal.

Be that as it may, in the light of foregoing, I am firmly of the opinion that a 'trial' (as opposed to a 'hearing') in the Magistrate Court commences with the taking of an accused person's plea to a charge and not as State Counsel submits, when the prosecution calls its evidence which in my view, signals the commencement of the 'hearing'.

I am fortified by the judgment of Scarman L.J. in R. v. Vickers (1975) 2 ALL E.R. 945 where his lordship said at p.948.

'Arraignment is the process of calling an accused forward to answer an indictment. It is only after arraignment, which concludes with the plea of the accused to the indictment, that it is known whether there will be a trial and, if so, what manner of trial. Hale, describing arraignment, says that, if the prisoner pleads not guilty-

'the clerk joins issue with him....and enters the plea : then he demands how he will be tried, the common answer is "By God and the country" and thereupon the clerk enters "po.se." [Ponit se in patrium].'

In Hale's time trial by compurgation or battle were possible alternatives to trial by jury. Not so today; but even today there is no trial on a plea of guilty; for 'an express confession...is the highest conviction that can be ': Hawkins, Pleas of the Crown. Thus it still remains true that there is no trial until it is known whether one is necessary; on a plea of guilty, no trial is needed for the entering of the plea is the conviction.'

More recently and in similar vein Watkins L.J. in R. v. Tonner and Others (1985) 80 Cr.. App. R. 170 in describing the above dictum as 'a very comprehensive and accurate statement of the law as to the commencement of trial' (ibid at p.181), continued thereafter to say at p. 182/183:

A trial can take place only if the defendant himself demands it by pleading not guilty, if he pleads guilty there is no issue to be tried.' [see also: the judgment of the Fiji Court of Appeal in Shiu Narayan v. R. ( 1980) 26 F.L.R. 165 at 172F]

This ground of appeal must be dismissed although for reasons not clearly articulated by the trial magistrate in his written ruling.

As for ground (a) ' the adjournment application', State Counsel accepts that the granting of an adjournment requires the exercise of a judicial discretion by the trial court, the exercise of which an appellate court would be slow to interfere with unless' ........ the result of the order made (by the trial Court) is to defeat the rights of the parties although and to do that which ....... would be an injustice to one or other of parties.' [per the Fiji Court of Appeal in the Macahill case (op.cit) referring with approval to the dictum of Atkin L.J. in Maxwell v. Keun (1928) 1 K.B. 645 at 653].

State Counsel then referred to the several grounds urged before the trial magistrate in support of the adjournment application as providing more than sufficient reason for the trial magistrate to exercise his discretion in the prosecution's favour and counsel drew the court's attention to the judgment in State v. Shiu Prakash Labasa Cr. App. No. 9 of 2001 (unreported) where Pathik J., in allowing an appeal against an acquittal in that case after the magistrate had rejected the prosecution's application for an adjournment of the case which would have effectively left the case part-heard in the absence of the complainant, said (at p.4):

'It must be borne in mind that this offence (Arson) is against the State and not against the complainant who did not appear.'

And later his lordship in rejecting the applicability of Section 210 of the 'CPC' in the circumstances prevailing before the magistrate where no evidence had been called, observed (at p.5):

'......(the Section) is applicable where there is no case to answer after evidence has been adduced.'

In the present case, the principal grounds for adjournment urged before the trial magistrate were: (1) that the DPP's Office received the relevant police investigation docket very late and had therefore not had adequate time to peruse the file and assess the evidence or prepare the case for trial;(2) the Investigating Officer (I.O.) was away in Kosovo on official peace monitoring duties; and (3) the hearing dates agreed to by the police prosecutor were fixed without any prior consultation with the DPP's Office. Which would be conducting the prosecution of the case.

It is significant that other than the I.O., absence of witnesses was not advanced before the trial magistrate as a ground for seeking adjournment albeit that none were in fact present the following day when the trial magistrate called upon State Counsel to proceed.

Be that as it may, reasons (1) & (3) above were summarily dismissed by the trial magistrate in his ruling 'as administrative difficulties which could have been easily avoided' and, although the absence of the I.O. overseas appeared to the trial magistrate to be ' (a) good and sensible reason for adjournment'. It was rejected because 'this was the same reason given to this Court on 10.4.01 when prosecution first asked for an adjournment or a discharge.'

This latter reference was to earlier proceedings before another magistrate that had been drawn to the trial magistrate's attention by Counsel, with and upon which he had been discharged and which court file the trial magistrate had plainly accessed before delivering his adjournment ruling.

In this regard Mishra J. in quashing the conviction in Rangaiya and another v. R. (1977) 23 F.L.R. 177 without considering the merits of seven other grounds of appeal, where the trial magistrate had perused the record of an earlier case prior to delivering judgment, said at P. 179:

'I have therefore come to the conclusion that the learned Magistrate's action in perusing the record of the earlier case between the hearing and the judgment was a serious irregularity.'

Counsel for the respondent (who was not counsel in the Magistrate Court) also referred in his written submissions, to the new wording of Section 202 of the 'CPC' [as replaced by Section 6 of the CPC (Amendment) Act No. 37 of 1998] as somehow curtailing the formerly unfettered powers of the Magistrate Court to adjourn a case before it. I cannot agree.

It may be noted however, that under the amendment, the power of a magistrate now to adjourn a matter is only exercisable' During the hearing of any case.......' and not Before or during the hearing of any case......', which was the original position under the 'CPC' prior to the amendment.

In light of the distinction earlier drawn earlier drawn in this judgment a 'trial' and a 'hearing', the question that arises is, was the omission of the word 'Before' in the amended section a deliberate one? and does the omission mean that a magistrate no longer has power to grant an adjournment before the hearing of a case has commenced? or does the expression 'the hearing of any case' include all preliminary steps prior to the actual calling of witnesses? If it means the former then plainly the trial magistrate was correct in effusing 'the adjournment application' in the absence of any jurisdiction to entertain it before the hearing had commenced, and not, because the reasons advanced by State Counsel were unacceptable. This matter was not addressed before me however and, for present purposes, I am content to adopt the latter as the less problematical solution.

Having said that, I accept that the wording of Section 202 of the 'CPC' (as amended) does require a magistrate to record that' good cause' exists for adjourning a case but, other than the statutory examples in subsection (2), a determination of what amounts to 'good cause' in any particular case continues to remain entirely a matter for the trial magistrate to consider and determine in the exercise of his largely unfetted discretion.

There can be no doubting that the trial magistrate in this case correctly followed the procedure laid down by Pain J. in DPP v. Vikash Sharma and Others (1994) 40 F.L.R. 234 where his lordship said at p.236:

'For clarity I record the formal steps that should be taken by a Magistrate (after he refuses the prosecutor's adjournment application). These rulings must be formally noted in the record:

(i) The application for an adjournment is refused;

(ii) The hearing then proceeds by the Magistrate calling upon the prosecutor to begin;

(iii) if no evidence is called by the prosecutor, then the defendant or defendants can be acquitted under Section 210 of the Criminal Procedure Code.'

Earlier in his judgment his lordship recognized 'that there must be some statutory authority for a magistrate to take such step (i.e. to acquit an accused person without hearing any evidence' and furthermore, his lordship observed at p.235;

'.......the case had been set down for hearing as a special fixture. Court time had been allotted for the hearing. The due dispatch of Court business requires fixtures to proceed on the allotted day unless there are very compelling reasons for adjournment. This is in the control of the Magistrate in each particular case.'

In the present case under appeal the trial magistrate has not identified the relevant statutory provision that he acted under in acquitting the respondent albeit that respondent's counsel suggested at the hearing of the appeal that the trial magistrate had invoked Section 210 of the 'CPC'.

Assuming that that was the relevant provision then clearly the exercise of it by the trial magistrate whilst seemingly consistent with the observations of Pain J. (op.cit)' is plainly contrary to the dictum of Pathik J. in State v. Shiu Prasad cited earlier.

In DPP v. Neumi Kalou & Anor Criminal Appeal No. 6 of 1996 (unreported) Scott J. recognized 'the uncertainly which flows from the different approaches taken' and after referring to the Macahill decision and various provisions of the 'CPC concluded (at p.4):

'a Resident Magistrate considering an application for an adjournment by the Prosecution needs to be aware that where the prosecution is unable to proceed following refusal of the request the result will almost inevitable be acquittal which....................... is a much more dramatic consequence ............... than dismissal',

and his lordship observed that in considering an adjournment application a trial magistrate (ibid at p.6):

'.......is not confined to .......the interests of the accused person but is entitled to have regard to the overall interests of justice'

including (ibid at p.7)

'..........the public interest that a prosecution should be discontinued in this way (i.e. by acquittal without hearing an evidence), particularly where a very serious offence such as burglary is involved.'

I respectfully adopt the above dicta in dealing with 'the adjournment application' in this case and am constrained to hold that the trial magistrate erred in being unduly concerned with the personal circumstances of the respondent and in failing to have regard to the overall 'interests of justice' including the seriousness of the charge proferred against the respondent which carried a maximum penalty of 14 years imprisonment; the fact that the charge, in form, was for a 'general deficiency' (see: Section 122(j) CPC) which is notoriously more difficult to prepare and prove than a single offence of stealing a specific amount on a specific date; and finally, in improperly perusing the record of the earlier proceedings against the respondent prior to delivering his ruling on the prosecution's application.

The appeal is allowed, the acquittal set aside and the case is returned for trial in the Magistrates Court.

(D.V. Fatiaki)
JUDGE

At Labasa,
20^th May, 2002

HAA0039J.01B