Siwan v State [2008] FJHC 189; HAA050.2008L (29 August 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 050 OF 2008L
NO. 31 OF 2008

BETWEEN:

1. SADA SIWAN
2. SALIN PRAMOD KUMAR
Appellants

AND:

THE STATE
Respondent

Appearances: Mr. K. Tunidau for the Appellants
Ms. V. Lidise for the State

Date of Hearing: 13 August 2008
Date of Judgment: 29 August 2008

JUDGMENT

This is an appeal against a discharge order entered against the appellants by the Nadi Magistrates’ Court.

The appellants were jointly charged with one count of official corruption contrary to section 106(a) of the Penal Code. The charge alleged that the appellants by virtue of being employed as a court messenger and sheriff respectively received $400.00 from one Anen Kumar in order to dispose a criminal case. Anen Kumar was charged with a criminal offence in an unrelated matter and his case was pending before the Nadi Magistrates’ Court. The appellants were officers of the Nadi Magistrates’ Court at the time they allegedly took bribe from Anen Kumar.

On 4 November 2007, the appellants appeared in court for arraignment of the corruption charge against them. They entered a plea of not guilty. On 23 November 2007, counsel for the State advised the court that the State was considering withdrawal of the charge. On 29 November 2007, when the case was called in court, the prosecution had not made up its mind on whether to withdraw the charge or to proceed to trial. On 20 December 2007, the court set a hearing of trial on 7 March 2008. On 7 March 2008, the prosecution was not ready for the trial and sought an adjournment. The court granted an adjournment over strong objection from the appellants. The case was adjourned for hearing of trial on 2 June 2008.

On 2 June 2008, counsel for the State before calling any evidence, informed the court that the prosecution’s key witness, Anen Kumar had given contradictory statements to the police. In the second statement, Anen Kumar stated that the police had obtained his earlier statement through coercion. The State decided to proceed with the trial. The hearing of trial commenced. The prosecution called Anen Kumar to give evidence. On oath Anen Kumar said he was assaulted by the police and was forced to sign the statement in which he stated he had given bribe to the appellants as alleged in the charge. Anen Kumar maintained on oath that no such transaction had taken place between him and the appellants.

The prosecution then asked for leave of the court to withdraw the charge pursuant to section 201(2)(b)(ii) of the Criminal Procedure Code. The appellants opposed this course and sought an acquittal. The learned Magistrate gave leave to withdraw the charge and discharged the appellants. The decision to discharge was based on the seriousness of the alleged charge and to provide the prosecution an opportunity to finalize its investigation.

The appellants on appeal allege that the learned Magistrate erred in discharging and not acquitting them.

Section 201(1) & (2)(b)(ii) provides:

(1) - The prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as aforesaid -

• (b) Where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 210, in its discretion make one or other of the following orders:-
  

(ii) an order discharging the accused."

Subsection (3) provides:

An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts.

Subsection (3) makes it plain that a discharge is not a bar to subsequent proceedings. In other words, the State is not prevented from bringing further proceedings based on the same facts against an accused person who has been discharged.

When the withdrawal of charge is made after the accused person has been called upon to make his or her defence, the court has no discretion but to acquit the accused (see, s. 201(2)(a)). But an order made pursuant to section 201(2)(b) is clearly discretionary.

The law in relation to an appeal against the exercise of discretion is settled. The discretion will be reviewed on appeal, if the trial court acts on a wrong principle, or mistakes the facts, or is influenced by extraneous considerations or fails to take account of relevant considerations. In addition, if it should appear that on the facts the order made is unreasonable or plainly unjust, even if the nature of the error is not discoverable, the order will be reviewed (House v The King (1936) 55 CLR 499, Evans v Bartlam [1937] AC 473). Failure to give weight or sufficient weight to relevant considerations will also vitiate the exercise of a judicial discretion but only if that failure is central to the exercise of the discretion (Charles Osenton & Co. v Johnston [1942] AC 130).

In exercising the discretion pursuant to section 201(2)(b), the court must not only take into account the interests of the prosecution but that of the accused as well. The section expressly provides that regard must be made to section 210 if withdrawal is made before the accused is called upon to make his defence. Section 210 provides for an acquittal of accused person where there is no case to answer. The test under section 210 was stated by Shameem J in Abdul Gani Sahib v State [2005] HAA0022/05S (28 April 2005) as follows:

"whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and whether on the prosecution case at its highest, a reasonable tribunal could convict. Where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. Where a possible view of the evidence might lead the court to convict, the case should proceed to the defence."

The learned Magistrate, as I have said earlier, based her reasons to discharge the appellants on the seriousness of the alleged charge and to provide the prosecution an opportunity to conduct further investigations. What concerns me is that no where in her decision the learned Magistrate after directing her mind to section 210 of the CPC considered the interests of the appellants. Seriousness of the charge is a relevant factor. However, a charge is a mere allegation and not evidence of guilt. The seriousness of the charge must be balanced with the interests of the accused and the overall interests of justice. The appellants like any other accused person were entitled to the presumption of innocence and all other trial rights.

To begin with, the prosecution gave an impression of a weak case against the appellants, by expressing an intention to withdraw the charge. When the charge was not withdrawn and the case was set for trial, the prosecution was not ready to proceed and sought an adjournment. An adjournment was granted. On 2 June 2008 the prosecution reluctantly proceeded to trial, resulting in the discharge of the appellants after its key witness turned hostile.

The period between the appellant’s arraignment and their trial was 7 months. In this period, the appellants appeared in all hearings and were not responsible for any delay. The prosecution albeit asserting the nature of charge to be serious, conducted the prosecution in a very casual manner. One would have thought the State to be more robust but fair in its approach when faced with the prosecution of a serious charge as in this case. The prosecution had seven months after charging the appellants to get any pending investigations completed and prepare for trial.

Whilst the institution of a prosecution is within the sole prerogative of the Director of Public Prosecutions, the duty to ensure the process is not abused is of the courts.

In Humphrys [1977] AC 1 at 26, Viscount Dilhorne said in reference to a supposed judicial power to intervene in the institution of a prosecution:

‘A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval’.

And in Barton [1980] HCA 48; (1980) 147 CLR 75 at 94-95, Gibbs ACJ and Mason J said:

"It has generally been considered to be undesirable that the court, whose ultimate function is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced ... though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue".

The discharge order in this case means that the prosecution is not barred from recharging the appellants based on the same facts. The question is whether the possibility of re-instituting the charge against the appellants in the circumstances of this case would constitute an abuse of process and if it does, then whether the learned Magistrate erred in not considering it along with the overall interests of justice.

The prosecution case against the appellants was that that they took bribe from Anen Kumar. Anen Kumar in law would be an accomplice requiring corroboration warning. Before the trial commenced, the prosecution learnt that Anen Kumar has withdrawn his earlier claim that he had given bribe to the appellants. Yet the prosecution did not to withdraw the charge by entering a nolle prosequi, which would have been a preferable course for the prosecution if the State wanted to re-charge the appellants after conducting further investigations. Instead the prosecution commenced the trial by calling Anen Kumar to give sworn evidence. Anen Kumar completely turned hostile on the prosecution and maintained on oath that he was assaulted by police to implicate the appellants. Not surprisingly the prosecution then sought leave of the court to withdraw the charge after Anen Kumar had given evidence. The ground upon which the withdrawal was made was to conduct further investigations.

I am not able to comprehend how any further investigations would be beneficial to the prosecution with the view of recharging the appellants. As I have said the preferable course was to enter a nolle prosequi. But the prosecution did not choose this course. Instead the prosecution called Anen Kumar to give sworn evidence, knowing that he would turn hostile. Even if I am to assume that Anen Kumar would be refurbished into implicating the appellants, he would surely be guilty of perjury because he had lied to the court on oath that the police had forced him to implicate the appellants. No matter from which angle one would look at Anen Kumar’s evidence, there was no evidence implicating the appellants. I am of the view that the learned Magistrate erred in not directing herself to these matters.

When one looks at the circumstances leading to the discharge order, it is open to the possibility that the State is fishing for more evidence, and endeavouring to justify the inherent weakness in the evidence to begin with. To allow the prosecution to do this would constitute an abuse of process and bring the administration of justice into disrepute.

Based on these reasons I am of the view that the learned Magistrate erred in the exercise of her discretion when she failed to consider the interests of the accused and the overall interests of justice when she discharged the appellants instead of acquitting them.

The appeal is allowed. Discharge order is set aside.

The appellants are acquitted.

[DANIEL GOUNDAR]
JUDGE

At Lautoka
29 August 2008