State v Prasad [2005] FJHC 129; HAA0026J.2005S (10 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0026 of 2005S

Between:

THE STATE
Appellant

And:

RONNIE PRASAD
Respondent

Hearing: 3rd June 2005
Judgment: 10th June 2005

Counsel: Mr. D. Prasad for State
Respondent in Person

JUDGMENT

The Respondent was discharged of the offence of careless driving on the 12th of January 2005. The Director of Public Prosecutions appeals against this order on the following grounds:

(a) That the learned Magistrate erred in law and in fact when he failed to exercise judicially his discretion to grant an adjournment;

(b) That the learned trial Magistrate erred in fact when he failed to consider the circumstances affecting the Appellant’s ability to summon its witnesses;

(c) That the decision to fix the matter for trial on the 12th day of January 2005, was unlawful as it constituted a purported exercise of judicial discretion and assumption of judicial authority by a person who was not lawfully empowered by law to do so;

(d) That the decision to fix the trial as aforesaid was unlawful as the person who purported to do so did not have the power to convene a Magistrates’ Court under the Magistrates’ Court and was not vested with lawful jurisdiction.

The Respondent was charged with driving carelessly on the 27th of May 2003. He pleaded not guilty and was told of his right to counsel. The matter was adjourned to the 19th of August 2003 for mention only. On the 19th of August it was adjourned again for disclosure. On the 9th of September the Respondent was represented by counsel. He asked for a 2 week adjournment and another mention date was fixed. On the 23rd of September, the Respondent’s lawyer failed to appear, and a hearing date was set for the 17th of February 2004. Counsel later appeared and was told of the hearing date. For some reason, which is not apparent from the record, the case was mentioned again on the 10th of November 2003. On the 17th of February the Respondent failed to appear in court, although his counsel appeared, and the hearing date was vacated. The case was adjourned to the 22nd of June for mention. On the 22nd of June 2004, the Respondent again failed to appear and a bench warrant was issued. The court was told that he was away abroad.

On the 23rd of June 2004, the Respondent did not appear, but counsel told the court that he would return to Fiji in November or December. The prosecution asked for a hearing date. The matter was adjourned to 13th December 2004 for hearing. The learned Magistrate said it would proceed with or without the Respondent.

On the 13th of December the Respondent was present but his counsel was not. The civilian witnesses were present but one police witness was not. The matter was adjourned to the 10th of January 2005.

The record then reads that on the 10th of January the matter was called before a magistrate. The prosecution and the Respondent were present. The case was listed for hearing to the 12th of January. On the 12th of January the prosecution asked for an adjournment, saying that the court clerk gave only two days. The Respondent who was represented by counsel objected saying that the prosecution was not ready for the second time. He said that the Respondent’s father was ill in Sydney. The learned Magistrate then ruled as follows:

“Appears to be a reasonable reason why the accused’s case should proceed today. Prosecution was present when date given – reason for urgency was explained. Still prosecution not ready.

Adjournments granted on account of accused before was by the consent of prosecution. Not so today. It’s minor charge. 2003 case-old matter. Accused is ready to proceed. Hanging over his head. Case management system in public interest to hear early.

Adjournment is refused.”

The prosecution was unable to call any evidence, and the Respondent was discharged under section 198 of the Criminal Procedure Code.

The appeal

The first ground of appeal is that the learned Magistrate failed to exercise judicially his discretion to adjourn. The High Court has said on many occasions that the refusal or grant of an adjournment should be considered carefully in the interests of the parties and the litigants. The right to speedy trial must be balanced with the public interest in bringing offenders to justice. (Rajesh Chand & Shailesh Kumar v. State Crim. App. AAU0056 of 1999S). Those principles do not need to be restated. In this case, there can be no doubt that the Respondent or his lawyer were responsible for almost all the adjournments until the 12th of January. Nor can there be any doubt that two days is generally inadequate notice for the summoning of witnesses, although the Criminal Procedure Code does not specify any time-limit for the issuing of a Form 12 summons. It is not clear from the record who set the hearing date. Although it appears from the record that the learned Magistrate did so, the record of the 12th of January indicates otherwise. Both counsel and the presiding Magistrate appear to accept that a clerk had set the hearing date. It was clearly unreasonable to expect the prosecution to be ready in two days, and then to refuse the first adjournment requested by the prosecution in almost two years. The result was unjust because the laying of a fresh charge of careless driving was time-barred. Grounds of appeal (a) and (b) succeed.

Ground (c) is that the Co-ordinating Clerk had no powers to set hearing dates. Of course, this proposition is quite correct. The Criminal Procedure Code only gives to magistrates, powers to set dates and to adjourn. However, the record is contradictory about who actually set the hearing date for the 12th of January. The typed record suggests that the case was called in court before Ms Lomaiviti. However, the original court record contains only a handwritten note that the case is set for hearing in court number 5, on the 12th of January. It is not signed by any magistrate, but the handwritten entry has the stamp of a resident magistrate in Suva.

If a clerk did indeed set the hearing date, he or she had no statutory powers to do so. State counsel informed me that under a new case management system, clerks were indeed setting hearing dates, but that they were no longer doing so. If that is the current position, and the court record being ambiguous about who actually set the hearing date on the 10th of January 2005, then this ground of appeal must fail, together with ground (d).

This appeal however, succeeds on the ground that the learned Magistrate erred when he refused the adjournment. The order discharging the Respondent is quashed. The matter must now proceed to trial.

The Respondent urged me not to order a re-hearing because of his father’s illness, and the frustrating delays in the hearing of the case. I note however that the two year delay was due largely to his own non-appearance. Although more than two years have now lapsed since the alleged commission of the offence, I consider that the Respondent should stand trial. If the Director of Public Prosecutions decides not to proceed with the prosecution however, it is entirely a matter for his discretion.

This appeal succeeds and a re-hearing is ordered.

Nazhat Shameem
Judge

At Suva
10th June 2005