State v Nand [2005] FJHC 79; HAA0087.2004 (21 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0087 OF 2004

BETWEEN:

STATE
Appellant

AND:

ABHAY NAND
s/o Kishore Nand
Respondent

Counsel: Ms P. Madanavosa – for the State
Mr. N. Lajendra – for Respondent

Hearing: 12th January, 2005
Judgment: 21st January, 2005

JUDGMENT

Background

The respondent was charged with one offence of larceny by servant. He is a police officer and it is said that he stole 40 litres of petrol to the total value of $39.00 from the Fiji Police Force.

This is the State’s appeal against an acquittal that arose because the learned Magistrate refused a Prosecution request for a last minute adjournment. Accordingly, it is appropriate that I briefly detail the curial history of the matter.

Date and Action

20 December 2002 - first appearance not guilty plea entered.

17 January 2003 – second appearance disclosure not completed. Case adjourned for mention.

6th February 2003 – mention only date. Disclosure completed. Hearing set.

5th June 2003 – hearing fixture vacated because of court commitments. Witnesses warned.

25th August 2003 – fixture adjourned as defence counsel unavailable. Mention date set.

16th September 2003 – further mention date set.

2nd December 2003 – adjourned for mention 26th January 2004.

26th January 2004 – no appearance by accused.

3rd February 2004 – a bench warrant cancelled on satisfactory explanation from accused. Charge amended. Reput and denied. Hearing date set for 28 June 2004.

28th June 2004 – prosecution unable to proceed an adjournment application made (see notes of record pages 10 &11).

The matter was set for hearing on the 28th of June 2004 but the prosecution were not in a position to proceed. Regrettably the Prosecutor assumed that an adjournment would be granted and in anticipation of that had discussions with defence counsel. It is further said that defence counsel did not strongly oppose the application but took the precaution of appearing in case the application was unsuccessful. It was. The learned Magistrate insisted on the matter preceding. He gave a written decision on the adjournment application which succinctly states the legal principles and his reasons for refusing the adjournment.

Thereafter the charge was put to the accused. He denied it. The Prosecution were asked to proceed. They could not tender any evidence. The learned Magistrate was left with no choice but to acquit the accused under Section 210 of the Criminal Procedure Code.

The State’s Case

Learned counsel provided very comprehensive and thorough written submissions that fairly set out the applicable principles for an appeal against refusal of an adjournment.

Counsel conceded that her only argument must be that in refusing the adjournment application the learned Magistrate failed to exercise his discretion in a judicial way and thereby denied the Prosecution its proper rights.

Counsel also helpfully produced a decision of my brother Justice Pathik in Criminal Appeal 125 of 1999 The State v Saiyad Iqbal citing this decision in support of her contention.

In Iqbal it took 13 months for the matter to come on for hearing. Throughout that unusual delay it is clear that my brother Justice was of the view that the accused and his counsel bore a large responsibility for the various adjournments and delays. The Court accepted that the prosecution was prejudiced by this delay in that it was then difficult to muster witnesses for the final hearing date. My brother Justice found that the learned Magistrate fell into error by failing to take this issue into account. The appeal was granted, the acquittal quashed and the matter re-heard.

The Respondent’s Case

The respondent conceded the prosecution was ready to proceed on two other hearing dates. However, counsel submitted that the adjournments were granted for good cause. The court wasn’t ready to proceed on the first adjournment. It was not the respondent’s fault that the adjournment had to be granted on the second occasion. The only other adjournments were in respect of mention or call-over dates. Counsel submitted that the learned Magistrate acted judicially and made no error in law in acquitting the respondent under section 210 of the CPC.

Decision

In R.T. McCahill, Criminal Appeal No. 43 of 1980 the Fiji Court of Appeal observed that the granting of an adjournment is a discretionary matter. An appellate court will not interfere unless it is satisfied that the discretion was not exercised judicially, and the rights of the parties were thereby defeated.

As my learned brother Pathik observed in Iqbal (supra) in reliance on dicta from Atkin L.J. in Maxwell v Keun (1928) 1 K.B. 645 at 653 observed:

“...the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order....”

When granting an adjournment in these circumstances courts must be fair to both sides. The defence because an accused is presumed innocent and entitled to have his case disposed of quickly. The prosecution because as societies guardian they must protect the public interest by ensuring that properly brought prosecutions are concluded. In R v Swansea, Justices and Davies, Ex-parte Director of Public Prosecutions, 154 J.P. 709 at 712-713 Mustill L.J. again referred to in Iqbal (supra):

“....The power to refuse an adjournment is not a disciplinary power to be exercised for the purpose of punishing slackness on the part of one of the participants in the trial. The power to adjourn is there so that the court shall have the best opportunity of giving the first available hearing to the parties.”

This principle is underscored by section 202 of the Criminal Procedure Code which states:

“(1) During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless for good cause, which is to be stated in the record.

(2) For the purposes of subsection (1) good cause includes, but is not limited to the reasonably excusable absence of a party or witness or of a party’s legal practitioner.”

The curial history, slackness of the parties, and reasons for earlier adjournments while an important background in the consideration of any application for adjournment must be seen in the context that each adjournment application requires a fresh exercise of the Court’s discretionary power.

The issue is whether the learned Magistrate failed to exercise his adjournment discretion judicially? The short answer to that issue is that the learned Magistrate did not fail. Pages 10 and 11 of the record demonstrate a clear and succinct reasoning for the refusal of the adjournment. The decision is correct in principle and applicable to the curial circumstances of the application.

In my view busy prosecutors must be careful not to predict the outcome of the courts exercise of its adjournment discretion. It is of course sensible and courteous for the prosecutor to discuss the need for an adjournment with opposing counsel. However, agreement between counsel as to the course of proceedings is not a good or sufficient cause for the court to exercise its discretion and thereafter grant the “arranged” adjournment. It would be quite wrong for the court to simply follow such arrangements and rubber stamp agreements of counsel. There are much wider principles at play than the convenience of lawyers and prosecutors.

In his decision the learned Magistrate correctly observed that the accused’s constitutional right to have the matter determined within a reasonable time and the public interest to have prosecutions resolved quickly by proceeding to trial on the first or second hearing date are two such important principles.

In my view Iqbal (supra) can be distinguished from the present case in that here there was no chronology that demonstrates the accused was responsible for all of the adjournments. The prosecutor was unable to explain the absence of his witnesses. From the history of the matter he certainly was not in a position to argue difficulty in mustering witnesses. The Iqbal argument was a unique situation resulting in a decision of limited applicability.

I find the learned Magistrate did exercise his discretion judicially by refusing the application for adjournment. I further find that having refused the adjournment the learned Magistrate followed the correct procedure under section 210 of the CPC which lead to the proper acquittal of the respondent on these offences.

For these reasons the appeal is dismissed.

Gerard Winter
JUDGE

At Suva
21st January 2005