State v Kumar [2009] FJHC 266; HAA056.2009 (30 November 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 056 of 2009

BETWEEN:

THE STATE
Appellant

AND:

RAVIN KUMAR
Respondent

Date of Hearing: 16th day of November 2009
Date of Judgment: 30th day of November 2009

Counsel: Mr. S. Qica for State
Respondent in person

JUDGMENT

[1] The respondent was acquitted in the Magistrates’ Court of the following offence:

Statement of Offence

CARELESS DRIVING: Contrary to sections 99(1) and 114 of the Land Transport Act of 1998.

Particulars of Offence

Ravin Kumar Shandil s/o Kamlesh Kumar, on the 19th of October 2008, at Nausori in the Central Division, drove a motorcycle registration number 205.E on Kings Road, Davuilevu without due care and attention.

[2] The State appeals against the acquittal. The appeal is sanctioned by the Director of Public Prosecutions.

[3] The petition contains the following grounds of appeal:

(a) That the learned Magistrate erred in law when he failed to consider or entertain a part-heard trial.

(b) That the learned Magistrate failed to exercise his discretion judiciously by refusing to proceed to hearing on the available prosecution witnesses.

(c) That the learned Magistrate erred in law when he invoked section 201(2)(b)(i) of the Criminal Procedure Code to acquit the Respondent.

[4] At the hearing of the appeal, the first and the second grounds were abandoned. The appeal was pursued on the third ground alone.

[5] The respondent was acquitted under section 201(2)(b)(i) of the Criminal Procedure Code. This section reads:

"(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:

(i) an order acquitting the accused;"

[6] The State submits that section 201(2)(b)(i) did not apply to the present case because the prosecutor had not withdrawn the charge. The State further submits that the prosecution showed good cause for not being able to proceed with the trial and therefore the acquittal was made in error of law.

[7] The respondent was arraigned on 4 February 2009. He pleaded not guilty to the charge. After five adjournments, the case was set for trial on 14 July 2009. On this date, the prosecution was not ready for the hearing because the witnesses were not subpoenaed. The respondent was present and advised the court that he was ready for the trial. The learned Magistrate granted an adjournment and warned the prosecution that no further adjournment will be allowed. The trial was adjourned to 24 August 2009.

[8] On 24 August 2009, the prosecution informed the court that they are unable to proceed with the trial because the investigating officer was on maternity leave. Although the court record does not explicitly state that the prosecution applied for an adjournment, it is apparent from the prosecutor’s statement that he was seeking an adjournment.

[9] The learned Magistrate then proceeded to acquit the respondent by giving the following reasons:

"The Court had informed the Prosecution on 14/7/09 that there will be no further adjournments. The Prosecution agreed to take today’s Hearing date and knew it was adjourned for the final time. The Prosecution would have known on 14/7/09 the Investigating Officer was pregnant, she would not have taken maternity leave, suddenly. The court cannot tolerate inefficient planning on part of the Prosecution. The Accused is prepared for the hearing and wants to proceed to Hearing. The Prosecution is not ready.

The Accused has two witnesses. The Court can not allow the charge to hang over the accused’s head through the Prosecution’s delay. The Court acquits the accused under Section 201(2)(b)(i) of the Criminal Procedure Code."

[10] Clearly, the learned Magistrate was frustrated with the conduct of the prosecution. The charge was a misdemeanour. On two occasions, the prosecution was not ready to proceed with the trial.

[11] Further, the prosecution failed to act diligently to ensure the trial was not unnecessarily delayed. The learned Magistrate had to consider the interests of the respondent, who on both occasions was ready for the trial. The prosecution did not offer relevance of the investigating officer’s evidence to show her evidence was crucial to the prosecution’s case and that if an adjournment was not granted they would be prejudiced in their right to present relevant and admissible evidence in support of the charge. In these circumstances, I am satisfied the learned Magistrate’s exercise of discretion in refusing an adjournment cannot be faulted.

[12] The issue does not end there. In this case, the learned Magistrate, after refusing an adjournment, acquitted the respondent under section 201(2)(b)(i) of the Criminal Procedure Code. This section only applies when the prosecution seeks leave to withdraw the charge. If there is no application to withdraw the charge, as was the case here, section 201 is not applicable. The proper procedure, after refusing an adjournment, is to invite the prosecution to call evidence and if no evidence is tendered, an acquittal is to be entered under section 210 of the Criminal Procedure Code (DPP v. Vikash Sharma, Atish Prasad & Rakesh Lal [1994] 40 FLR 234 HAA0011/94S Oral Decision 1 November 1994 per Pain J; applied in State v. Samuela Suguturaga [2002] HAA 001/02S (apf MC Case 354/01S) Judgment 19 April 2002 per Shameem J). The learned Magistrate therefore erred in acquitting the respondent under section 201(2)(b)(i) of the Criminal Procedure Code when the prosecution had not sought leave to withdraw the charge.

[13] However, despite the error in acquitting the respondent under the wrong section of the law, I am satisfied that no substantial miscarriage of justice has occurred. If the learned Magistrate would have applied the proper procedure, the end result would have been an acquittal. I therefore apply the proviso under section 319(1)(a) of the Criminal Procedure Code and dismiss the appeal.

[14] The appeal is dismissed.

Daniel Goundar
JUDGE

At Suva
30th November 2009

Solicitors:
Office of the DPP for the State
Respondent appeared in person