IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No : HAA 011 of 2008

BETWEEN:

THE STATE
Appellant

AND:

AGAPE FISHING ENTERPRISES
Respondent

Counsel: Mr. P. Bulamainaivalu for the State
Mr. T. Fa for the Respondent

Date of Hearing: Friday 1st February, 2008
Date of Judgment: Friday 15th February, 2008

JUDGMENT

Background

[1]	This is an appeal by the State against an order of acquittal entered by the Magistrates’ Court at Suva.

[2]	On 10 July 2007, the respondent was charged with the offence of taking fish without a valid licence, contrary to sections 10(1) and 5(3) of the Fisheries Act (Cap. 158). The particulars of the offence alleged:

AGAPE FISHING ENTERPRISES LIMITED, between the 23rd day of October 2003 to the 3rd day of November 2003 being required to be a holder of a licence took fish in Fiji fisheries waters in the course of business without a valid licence.

[3]	On 13 November 2007, the hearing of the trial was scheduled to commence in the Suva Magistrates’ Court. The court record of this day shows:

For Prosecution: No appearance
Accused: Present Mr. T. Fa

MR. FA: Matter is for hearing since DPP is for the State. In Case File 766/2007, they didn’t appear on 09.07.2007, the accused was then discharged. She is now been recharged. Since they’re not here, ask for acquittal.

COURT: From the above submission, and there is no good reasons for non-appearance of DPP, I order that there be no adjournment in this case.
Further, this is a 2003 matter, the 12 months limit under Section 202(7) of the Criminal Procedure Code (Amendment) 1998 had long expired.

(sgd)
RESIDENT MAGISTRATE
Charge read and explained and understood.

PLEA: I understand the charge I still deny it. No appearance of DPP, therefore no evidence tendered.

COURT: No evidence before the Court, I order that the case be dismissed and the accused to be acquitted forthwith under Section 210 of the Criminal Procedure code.

28 days to appeal.

(sgd)
RESIDENT MAGISTRATE"

[4]	The State appeals the acquittal on the following grounds:

(a)	That the learned Magistrate erred in law when he dismissed the case merely on the basis of the absence of the State Prosecutor.

(b)	That the trial Magistrate erred in law by failing to provide an opportunity to the State Prosecutor to seek an adjournment pursuant to section 202 of the Criminal Procedure Code (Cap.21).

(c)	That the trial Magistrate erred in law and failed to exercise his discretion fairly and judicially when he invoked section 210 of the Criminal Procedure Code (Cap.21) to acquit the Respondent, bearing in mind the gravity of the offending.

Adjournments

[5]	I deal with grounds one and two together. 

[6]	The granting of an adjournment is a matter of discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice are done to one or other of the parties (see, McCahill v State, Criminal Appeal No. 43 of 1980; Chand v State, Criminal Appeal No. AAU0056 of 1999S). 

[7]	Counsel for the State submits the learned Magistrate should have enquired the whereabouts of the prosecutor before refusing the adjournment. The question is whether the refusal of adjournment in the circumstances defeated the rights of the State altogether from prosecuting the charge. 

[8]	In fairness to the learned Magistrate, the Magistrates’ Court has been in the past criticized for delays in the hearing of cases.

[9]	In Chand v State, Criminal Appeal No.AAU0014 of 2004S, the Court of Appeal said:

Before leaving this case, however, we must refer to the delays in this trial in the magistrates’ court. Whilst some of the delay must be attributed to the unfortunate conduct of the defence, the overall delay and the part played in this by the magistrate cannot be justified on any ground. We accept that all magistrates work under a great deal of pressure and we have no evidence, of course, of the actual state of the list in the case of the magistrate involved. We were told that an intervening trial took priority and caused this case to be left for five months. Whatever the priority of that case, it is inconceivable that the magistrate could not have made a maximum of two days available to finish a trial in which he had heard the prosecution case nine months before. The number of adjournments and the fact that, in very many of them, there is no reason given in the record, suggest what can only be described as a cavalier attitude to the rights of the accused to have his case heard within a reasonable time and a failure to follow the provisions of section 202(1) of the Criminal Procedure Code.

[10]	In Shameem v State, Criminal Appeal No. AAU0096 of 2005, the Court of Appeal again made similar observation:

This case shows a shocking failure of the system of trials in the Magistrate’s Court and an equal failure to remedy it in the High Court.

[11]	In light of these strong observations by the Court of Appeal on the delays in the Magistrates’ Court, I can understand the frustrations of the Magistrates when the prosecutor having notice of the hearing date, fails to appear. 

[12]	It is fair to say that the prosecutors do contribute to the delays in the Magistrates’ Court in some way or other. Unfortunately, the Magistrates’ Court has no power to award costs against the prosecutors when they fail to appear for hearings or when they cause adjournments. This is something the Law Reform Commission should consider when proposing amendments to the current Criminal Procedure Code. 

[13]	In State v Atishwar Dayal (2000) FLR Vol. 1, the prosecutor was 15 minutes late to the court because he was travelling from Suva to Ba and had rung the court and advised that he was running late. The court after having the case stood down for a while discharged the accused upon an application from his counsel. 

[14]	On appeal, Prakash J said:

… the discretion to dismiss an information is not conferred for punitive purposes. "The justices must not, therefore, exercise their power to dismiss where they know that a prosecutor is on the way to Court, and that the case is otherwise-ready to be presented (Henderson Justices, ex parte DPP [1994] QB167; see also Dudley Justices, ex parte Blatchford (1992) 156 JP 609)". In the State v Saiyad Iqbal s/o S. Kutty Cr. App. HAA0037 of 1998S Justice Townsley dealt with a situation similar to this case. In that case the counsel for the DPP had gone to the wrong Court in Suva. In the absence of the Prosecutor the learned Magistrate, on Defence application, acquitted the accused. As Justice Townsley stated: "Even more surprisingly the learned Magistrate granted the application, without adjourning to enquire the whereabouts of the DPPs Counsel (p.3 emphasis added). … In R v Swansea Justice and Davies ex parte DPP 154 JP 709 at 173, Lord Mistill stated that "although slackness and fault is only one element in the balancing exercise, it is only one element and the justices are there to try cases and not to punish the prosecuting authorities.

[15]	The circumstances of the present case are not same as in Dayal and Iqbal. I was informed from the bar table that the same prosecutor failed to appear twice in this case. On the first call date, the prosecutor failed to appear, and the respondent was discharged. She was later charged for the same offence because the discharge was not a bar to subsequent proceedings. After two court appearances, a hearing of the trial was fixed. The prosecutor was present when the trial fixture was given. On the date of the hearing, the prosecutor failed to appear again.

[16]	The State has not sought leave to adduce evidence of the reasons for the non appearance by the prosecutor in the lower court. 

[17]	However, slackness and fault on behalf of the prosecutor is only one element in the balancing exercise of discretion to grant or refuse an adjournment. The court should not act too quickly to acquit an accused when the prosecutor fails to appear. There could be many reasons for the non appearance of a prosecutor, some of which may be justifiable and some may not. The court should at least enquire the whereabouts of the prosecutor by having the case stood down. After having enquired the whereabouts of the prosecutor, the court is satisfied that the non appearance is without a good cause, the court may refuse to adjourn. 

[18]	In this case, no inquiry was made by the learned Magistrate for the non appearance of the prosecutor. It was the first time the case was set for hearing. There had not been any other adjournment of the hearing of the trial. All these factors should have been considered by the learned Magistrate before refusing the adjournment. By failing to direct his mind to all these factors, the learned Magistrate did not judicially exercise his discretion in refusing the adjournment. 

[19]	This ground of appeal succeeds.

Section 210 of CPC

[20]	After refusing the adjournment, the learned Magistrate acquitted the respondent under section 210 of the Criminal Procedure Code.

[21]	Section 210 provides:

If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.

[22]	The learned Magistrate equated the non appearance of the prosecutor with no evidence in support of the charge. In my view, the learned Magistrate was plainly wrong to invoke section 210 to acquit the respondent. Section 210 can be invoked if after refusing an adjournment, the prosecutor is called upon to tender evidence in support of the charge and the prosecutor tenders no evidence (DPP v Vikash Sharma 40 FLR 234). If the prosecutor is not present to be called upon to tender evidence in support of the charge, section 210 cannot be invoked to acquit the accused. 

[23]	For these reasons, I am satisfied that the acquittal should be set aside and the case remitted to the Magistrates’ Court for trial de novo by another magistrate.

Result

[24]	The appeal is allowed.

Daniel Goundar
JUDGE

At Suva
Friday 15th February, 2008

Solicitors
Office of the Director of Public Prosecutions, Suva for the State
Tevita Fa & Associates, Barristers & Solicitors, Suva for the Respondent