State v Singh [2008] FJHC 85; HAC14.2001 (16 April 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 14 of 2001

BETWEEN:

THE STATE

AND:

SWADESH KUMAR SINGH

Counsel: N. Nand for the State
K. Tunidau (on instructions from A. K. Singh) for the Accused

Date of Hearing: Tuesday 15th April, 2008
Date of Judgment: Wednesday 16th April, 2008

JUDGMENT

[1] On 2nd October 2001, the accused was charged by criminal information with a single count of murder contrary to sections 199 and 200 of the Penal Code, Cap. 17.

[2] The particulars of the offence alleged that the accused on the 18th day of April, 2001 at Nadi in the Western Division murdered Sandhiya Devi.

[3] Trial commenced on 1st December 2003 and concluded on 20th February 2004. The accused was convicted and sentenced to life imprisonment. He appealed against conviction to the Court of Appeal.

[4] On 25th November 2005, the Court of Appeal dismissed the accused’s appeal. The accused appealed to the Supreme Court.

[5] On 19th October 2006, the accused succeeded in his appeal against conviction. The Supreme Court ordered a retrial. On this issue the Supreme Court observed:

"Of course, the question whether there is to be a retrial is a matter within the sole discretion of the Director of Public Prosecutions. No doubt the Director will have due regard to the inconsistencies in the evidence of the State witnesses recounted in these reasons, and to the time that has elapsed since the murder, when exercising that discretion. "

[6] On 2nd November 2007, the matter came before me to fix a hearing date. The State sought and was granted time to consider whether the State will proceed with the retrial in light of the observations made by the Supreme Court regarding the evidence against the accused.

[7] By 20th March 2008, the State had not made a decision. The Court then set a hearing of the trial on 15th April 2008.

[8] On 15th April 2008 at 9.30am, the State sought an adjournment of the hearing of the trial on the ground that the prosecutor in-charge of this matter was engaged in another trial in the High Court at Suva.

[9] Mr. Tunidau had "no vigorous" objection to an adjournment sought by the State. Mr. Tunidau informed the Court the reason for Mr A. K. Singh’s non appearance was that the State had advised him that the hearing of the trial was not going to proceed.

[10] I should remind counsel that it is the Court who fixed the hearing date in this matter. Whether or not the hearing of the trial will proceed on the fixed date is a matter for the Court to decide and not the State. Counsel should not enter into their own arrangements to vacate hearing dates fixed by courts.

[11] When I enquired with Mr. Tunidau whether the accused was waiving his right to be tried within a reasonable time, he informed the Court that he had no instructions on waiver.

[12] I refused an adjournment and ordered the trial to commence at 2 pm. I took into account that no good cause was advanced for an adjournment, the prosecution had not filed subpoenas for the witnesses, the trial date was fixed a month ago, the post charge delay before the commencement of the retrial was 7 years, and that there was no express waiver by the accused of his right to be tried within a reasonable time.

[13] At 2 pm, just before the commencement of the hearing of the trial, the State entered a nolle prosequi in this matter by stating in Court that the proceedings against the accused are to be terminated pursuant to section 71 of the Criminal Procedure Code.

[14] When the Director of Public Prosecutions exercises discretion to enter a nolle prosequi, the courts are obliged to accept the decision without ascertaining reasons for that decision. The underlying principle is that the Director’s decision is not reviewable by courts in absence of bad faith. There is no suggestion that the Director has exercised his discretion in bad faith to enter a nolle prosequi in this matter.

[15] The Court accepts the nolle prosequi and terminates the proceedings against the accused. The accused is discharged. A discharge under section 71 does not operate as a bar to any subsequent proceedings against an accused on account of the same facts.

Orders:

Nolle prosequi entered.
Accused discharged without prejudice.

Daniel Goundar
JUDGE

At Lautoka
Wednesday 16th April, 2008

Solicitors
K. Tunidau on instructions from A. K. Singh for the Accused.
Office of the Director of Public Prosecutions, Lautoka for the State