Director of Public Prosecutions v Singh [2005] FJHC 37; HAR0001J.2005S (25 February 2005)

THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Criminal Revision No: HAR0001 of 2005

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Complainant

And:

BRIAN SINGH
s/o Ram Singh; and
SASHI SHALENDRA SANJEEV PAL
s/o Ram Kirpal
Respondents

Hearing: 18th February 2005
Judgment: 25th February 2005

Counsel: Mr. P. Ridgeway & Mr. A. Ravindra-Singh for State
Ms Y. Fatiaki for 1st Respondent
Mr. M. Raza for 2nd Respondent

JUDGMENT

This is an application by the Director of Public Prosecutions for revision of a decision of the Suva Magistrates’ Court to refuse to accept charges for filing. There is no dispute between the parties, that the matter cannot be the subject of an appeal, and that the application for revision is competent.

The application was made by letter to the Chief Registrar dated February 16th 2005. It reads as follows:

“Re: State v. Brian Singh & Sashi Pal

By this letter I respectfully request that you urgently refer to a Justice of the High Court a matter in the Magistrates’ Court to be reviewed urgently in furtherance of the powers contained in s.325 of the Criminal Procedure Code.

In this matter, the two accused persons have been summonsed to appear in the Magistrates’ Court at Suva on Thursday 17th February, 2005 to answer charges of Conspiracy to Defraud and Obtaining by Deception. Their Bail Undertakings pursuant to the Bail Act 2002 are attached.

Charge Sheets have been prepared and presented today to the Magistrates’ Court in accordance with the Criminal Procedure Code. The Charge Sheets are also attached.

The Court has refused to hear or be seized of this matter. This is a refusal to exercise jurisdiction and is highly damaging to the interests of the justice.

The matter is not susceptible to Appeal since the court is refusing to be seized of the matter and to act judicially.

The need for revision is urgent. Your kind cooperation is appreciated.”

The matter was set for hearing in chambers on the 18th of February 2005. State counsel said that their ground for the application was the refusal of the Suva Magistrates’ Court to accept charges filed less than 7 days before first call. He said that the police granted bail for accused persons to appear on a particular day, but that on that day, because of the refusal of the Court to accept charges, they would not be able to appear in court to have their bail extended. He said that there was no jurisdiction for the magistrates to refuse to accept charges, which were properly brought, and that the new “system” had no statutory base at all. He said that he had written to the Senior Court Officer of the Suva Magistrates’ Court on 20th of January expressing his concern about the new procedure, and saying that there is no authority for it and that it conflicts with the Bail Act and the Criminal Procedure Code. The reply from the Senior Court Officer unfortunately was not helpful. In a letter to the Acting Director of Public Prosecutions, dated the 25th of January 2005, he wrote:

“I am in receipt of your letter dated 20.1.05. After perusing the same the current Co-ordinating Magistrate Ms Lomaiviti has directed me to inform you that your letter is not worth commenting.”

Having attempted and failed to resolve the matter administratively, the State now makes this application. Counsel for the Respondents agreed with State counsel that the new system of refusing to accept charges without 7 days notice, was causing inconvenience and disruption to the administration of justice and to the accused persons who appeared in response to their bail undertakings on the dates specified on their bail forms. Mr. Raza in particular said that members of the Law Society had not been consulted before the new procedure was adopted and that he had complained about the disruption caused by it to the administration of the Magistrates’ Courts, but to no avail.

In this case, he said he appeared with his client, but was told that the Magistrate had refused to accept the charges, or to sign them. When he strongly protested, saying that the accused needed to surrender to the court as required by their bail undertakings, the learned Magistrate grudgingly agreed to mention the case but still refused to accept or sign the charges. The case will next be called on the 1st of March. He said that the new case management system in the Suva Magistrates’ Court was chaotic, and that he had written to both the Chief Justice and the Chief Magistrate about it.

In order to consider this application I called for the court file, both in this case and in the case of State v. George Shiu Raj. In the latter case, the State apparently found itself in the same position. Unfortunately the court files were not sent to me until I issued a written order on the 23rd of February. I still have not received the George Shiu Raj file.

The court file in this case shows that the Bail Undertaking Form required the accused to attend court on the 17th of February. The file contains a copy of the charges but it was not signed by the Magistrate until the 23rd of February, 6 days after the 17th of February. The court record shows that the case was called before the learned Magistrate on the 17th of February, the charges had not been filed. The prosecution said that the charges had been presented for filing the previous day. The court then asked: “Why is charge not filed then?”

The prosecution was unable to respond. The court then said: “Court has issued directives as far as filing of charge is concerned and to be complied with by all concerned.” The court then deferred plea to the 1st of March when the charge was “properly before the court.” The record does not show that the court specifically refused to accept the charges, but that is certainly implied. Certainly all counsel agree that she did so refuse.

A charge, according to section 2 of the Criminal Procedure Code, is “an official notification to a person by a competent authority that a person is accused of committing an offence and that the person is required to appear in a magistrates’ court to answer the charge.”

Section 78 of the Criminal Procedure Code provides that: “Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without warrant.” Section 78(2) provides:

“Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a magistrate having jurisdiction to cause such person to be brought before him.”

Section 78(3) provides:

“A complaint may be made orally or in writing but if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate:

Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the magistrate and shall, for the purposes of this Code, be deemed to be a complaint.”

Section 78(4) provides:

“The magistrate, upon receiving any such complaint, shall, unless such complaint has been laid in the form of a formal charge under sub-section (3), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged.”

Section 79 provides that upon signing the charge, the magistrate may in his discretion issue either a summons or a warrant to compel the attendance of the accused person in the magistrates’ court. Section 79(2) provides that the procedures in relation to charges and complaints are valid even if there is a defect in the complaint or the charge.

The Bail Act provides, by virtue of section 21, that a person cannot be released on bail unless he or she gives to a police officer a written undertaking that he or she will surrender into the custody of the bail officer of a court specified in the undertaking and on a day and place specified. It must be given in terms of the Forms scheduled to the Act. Section 21(3) provides:

“An accused person who is granted bail must appear in person before a court in accordance with the person’s bail undertaking.”

These statutory provisions make it clear that once the formal charge is laid in the Magistrates’ Court by a police officer, the Magistrates’ Court has no power to refuse to accept them. This is so, even if the charge appears to be defective. Thus a Magistrate must sign the charge forthwith. There is no power to defer the signing of the charge, as was apparently done in this case.

Secondly, once the accused signs the bail undertaking to appear in court on a particular day, he or she must appear on that day before the designated bail officer. It is the duty of the bail officer to ensure that the case is called before a Magistrate for the continuation, cancellation or variation of bail. The Magistrate cannot refuse jurisdiction.

So clear are these provisions, that there is no need to imply a residual discretion to delay the filing of charges, to refuse to accept a bail undertaking date or to decline to sit to consider bail or to take the plea. Clearly therefore, any act on the part of the learned Magistrate to do any of these things, has no statutory basis and is unlawful. Any such practice, to refuse charges or to refuse to consider bail, is unlawful and must cease forthwith.

This application succeeds. The refusal to accept charges was improper, incorrect and unlawful. It is reversed in accordance with my powers on revision under section 325 of the Criminal Procedure Code. The charges must now be taken to have been filed on presentation on the 16th of February 2005.

I make one final point which arose out of submissions by counsel. It was brought to my attention that clerks of the Suva Magistrates’ Court have begun to grant adjournments and to extend bail, also under the new procedure. These decisions are judicial decisions. They must be exercised judicially by a Magistrate. Neither the Bail Act nor the Criminal Procedure Code give to court clerks and officers, any powers to adjourn cases or to grant bail. If this is indeed a new practice, there is no lawful authority for it.

Nazhat Shameem
JUDGE

At Suva
25th February 2005