State v Delana [2008] FJHC 52; HAA015J.08 (28 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 015 of 2008

Between:

THE STATE
Appellant

And:

FILIPE DELANA; and
UATE CAMA
Respondents

Hearing: 19th March 2008
Judgment: 28th March 2008

Counsel: Ms H. Tabete for State
Both respondents in person

JUDGMENT

This is an appeal by the State against the acquittal of both Respondents on multiple charges of breaking entering and larceny and one count of criminal intimidation. The grounds of appeal are:

(a) That the learned magistrate erred in law when he acquitted the Respondents without any statutory basis but purely because of the absence of the Police Prosecutor;

(b) That the learned magistrate erred in law when he failed to give the opportunity to the Police Prosecutor to seek an adjournment;

(c) That the learned magistrate erred in law when he failed to give an opportunity to the prosecutor to prove a prima facie case;

(d) That the learned magistrate erred in law when he failed to exercise his discretion judicially when he did not stand down the case till later that morning.

The charges were first laid on the 13th of April 2006 and were called in the Suva Magistrates’ Court on the same day. Both Respondents pleaded not guilty on all counts. The 1st Respondent was a serving prisoner. The 2nd Respondent was granted bail.

There were then several adjournments. The first was for disclosure, on the 4th of September 2006. A second on the 8th of June 2006 was to allow a production order to be served. On the 19th of September 2006, the 2nd Respondent failed to appear, and no arrangements had been made for a Chinese interpreter for one of the witnesses. On the 11th of October 2006 the prosecution witnesses and both accused were present but another hearing date was set. On the 18th of January 2007 the court officer had failed to make arrangements for a Chinese interpreter and the hearing date was again vacated. On the 19th of February 2007, no arrangements had been made for an interpreter and the hearing was adjourned to the 30th of April 2007. On the 30th of April the Magistrate was sick. On the 21st of May 2007 the hearing was again adjourned although no reasons were given. On the 11th of July 2007, both Respondents were present but two complainants had not been summoned and were not in court. The record then reads:

"Since there are 2 complainants in Counts 2 and 6, I order that the charges in these 2 be dismissed under section 198 of the Criminal Procedure Code."

The trial then proceeded. The Respondents continued to be unrepresented by counsel. The evidence was that the security officer of the Yatu Lau Arcade, on Rodwell Road was guarding the compound at 2.15am on the 27th of March 2006 when three men climbed through the gate from Rajendra Prasad Supermarket. One of them held a knife to his head. They tied his hands up with rope and taped his mouth with cellotape. One stood on guard, while two broke into Grant’s Waterhouse. He said that the 1st Respondent was the one who held a knife. He did not identify the 2nd Respondent. The men broke into four shops and came back with two money bags. Under cross-examination he agreed that the 2nd Respondent (whom he knew) was not present during the breakins.

The prosecution then tendered by consent, the statements of the owners of the four shops. PC Amani Bosenawai gave evidence that he was given an imitation gun which had been identified by one of the witnesses. He also interviewed the 1st Respondent, who admitted the breakins. In cross-examination, he denied that he had threatened the 1st Respondent.

PC 497 Lole gave evidence that he interviewed the 2nd Respondent under caution. He denied forcing, harassing or assaulting the 2nd Respondent. Because the Respondents had alleged force the court said that it would conduct a trial within a trial.

The trial was adjourned for continuation to the 30th of July 2007. On that date, the 1st Respondent asked for High Court trial. He was told that the charges were not electable. The prosecutor said that the interviewing officer and investigating officer were not present. Another mention date was set. On the mention date, the trial was set for continuation to the 29th of October 2007.

On the 29th of October, the court record reads as follows:

"For Prosecution: No appearance

Accused 1: Present

Accused 2: Present

Court: The Prosecutions have yet to close their case. The Prosecution is NOT present.

This is the final case for me today. It’s after 9.30am, no news of the Prosecution absence.

The evidence of PW1 needs to be corroborated more if the Court was to consider there is enough evidence before the Court. As it is, there is insufficient evidence to make a prima facie case.

I order that the cases be dismissed and both accused be acquitted on all Counts.

28 days to appeal."

The State appeals against these acquittals. Its main submissions are that the learned magistrate had no powers to acquit at that part of the trial. The only provisions which allow for such an order are section 210 of the Criminal Procedure Code (after the end of the prosecution case) or section 215 (after a defended hearing). The State submits that the learned magistrate should have either stood the case down to allow the prosecutor to appear, or adjourned the matter for another date. Further, the evidence already led revealed that the allegations were serious and that the prosecution had not caused the earlier delays in the hearing of the case.

The Respondents submit that they were ready for trial, that the prosecution was to blame for the series of events leading to their acquittal and that the appeal should be dismissed.

The learned magistrate did not refer to the section of the Criminal Procedure Code under which he was purporting to act. Section 210 of the Code 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."

Section 215 of the Code also gives a power to acquit. It provides:

"The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law and shall acquit him or make an order under the provisions of section 44 of the Penal Code."

The only other relevant section is section 203 of the Code. It provides:

"(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order for adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit."

This last section contains no power to acquit (State v. Semisi Wainiqolo HAA00117/97, Rajendra Ist Deo v. Ratnesh Lal Jattan [2002] HAA 077/02S.)

The only section under which the learned Magistrate could have acquitted at the state of the trial that he did, is section 210. It is clear however that he erred for several reasons.

When the prosecutor failed to appear in court by 9.30am, the learned Magistrate was faced with two options. He could have adjourned the case to later in the day to allow the prosecution to call its witnesses on the trial within a trial. In deciding whether or not to opt for this course, he should have considered the history of the case. It is clear from the history set out in this judgment that the bulk of the adjournments was due to the court’s delay. On a few occasions, both Respondents, or one of them failed to appear. Only one adjournment could be laid at the prosecutor’s door.

Further, the adjournment for a trial within a trial was an unnecessary complication. When the interviewing officers were called to give evidence, the presiding magistrate should immediately have asked the Respondents if they objected to the admissibility of the statements. The question of voluntariness should not have been allowed to arise willy nilly in the course of cross-examination by the unrepresented defendants. If the questions had been asked of the accused by the court earlier in the day, the prosecution could have conducted a voir dire at the outset.

In these circumstances, the learned magistrate should have chosen to adjourn. This was a case involving serious allegations. Much of the evidence had already been led. It was obviously in the public interest to allow the prosecution to continue with its case. As the High Court and Court of Appeal have said in a number of cases (Robert Tweedie Macahill v. R [1980] AAU43/80; State v. Samuela Nabainivalu [1997] HAA0039d/97S; Rajesh Chand & Shailesh Kumar v. State [2001] AAU0056/99S), the decision to adjourn is a judicial decision to be made after a balancing of all relevant factors. In the Rajesh Chand & Shailesh Kumar decision, the Fiji Court of Appeal held that although an application for an adjournment requires the exercise of a judicial discretion with which an appellate court will rarely interfere, it will be reviewed on appeal where the "result of the order is to defeat the rights of the parties altogether or to do an injustice to one or other party."

In DPP v. Neumi Kalou & Anor. (1996) 42 FLR 126, it was held that in the exercise of the discretion, the magistrate or judge should consider not only the interests of the accused person, but also the overall interests of justice. This is particularly so when the charge is serious and there is a strong public interest in ensuring that such charges are properly tried.

The court record for the 29th of October 2007 does not disclose the exercise of any such discretion. Indeed the learned magistrate appears to have assumed that his only option was to consider whether there was sufficient evidence to put the accused to their defence. He found there was not. In making such a finding he fell into further error.

The test at the end of the prosecution case is whether, when taken at its highest, the evidence is such that a reasonable tribunal might convict on it (Afasio Mua & Others v. State (1991) 37 FLR 27, Shell Fiji Limited, Mobil Oil (Aust) Ltd. v. State [2002] HAA001/00L.

If, having properly and judicially considered that he would not adjourn to wait for the prosecutor, the learned magistrate decided to consider whether there was a case to answer, he should have applied this test to the evidence. The evidence led implicated the 1st Respondent directly even without his police confession. There was clearly a case to answer on each charge for the 1st Respondent who had been identified as the person holding a knife to the head of PW1, restraining him and taping his mouth for the whole period of the breakins. The 1st Respondent should have been put to his defence on this evidence alone.

There was no evidence implicating the 2nd Respondent other than his statement to the police. In that statement he said that he was a hairdresser working at the Yatu Lau Arcade and that it was he who counseled the others to steal from the shops in the Arcade. He said he did not accompany the others on the night of the breakins. If the learned magistrate had refused any adjournment after proper consideration, he would have been correct to find that there was no case against the 2nd Respondent. This is because the 2nd Respondent disputed the admissibility of his police statement and it was the prosecution’s responsibility to prove voluntariness and admissibility.

In the circumstances of this case, the multiple charges, the history of court adjournments, the lack of fault on the part of the prosecution, the public interest in ensuring that a trial took place and the fact that the trial had only been adjourned because the objection to admissibility had been raised at a late stage, the learned magistrate should have stood the matter down to allow the prosecutor to call his/her evidence and to close the case. In failing to do so, an injustice has occurred to the prosecution.

The acquittal must be quashed and the case remitted to the same magistrate to continue with the trial.

Result

This appeal succeeds. The acquittals of both Respondents are quashed. The trial is to continue before the same magistrate.

Nazhat Shameem
JUDGE

At Suva
28th March 2008