Fontana v State [2011] FJHC 377; HAA017.2011 (8 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 017 OF 2011

BETWEEN:

MARIA FONTANA
Appellant

AND:

STATE
Respondent

Mr. S. Ram for the Appellant
Mr. S. Babitu for the State

Date of Hearing : 06 July 2011
Date of Judgment : 08 July 2011

JUDGMENT
[Appeal: Nullity]
______________________________________

[1] On the 14th January 2011 the appellant was charged in the Magistrates Court at Ba with the following offence:

Statement of Offence

OCCASIONING DEATH BY DANGEROUS DRIVING: Contrary to section 97(2)(c) and 114 of the Land Transport Act 1998.

Particulars of Offence

Maria Fontana, on the 12th day of January, 2011 at Ba in the Western Division drove a private motor vehicle registration number EV 344 on Kings Road, Natunuku in a manner which was dangerous to the public having regards to all the circumstances of the case and caused the death of Vijay Latchmi.

[2] To this charge she entered a plea of not guilty and the matter eventually proceeded to trial before the Magistrate, the prosecution calling 9 prosecution witnesses. At the end of the prosecution case, the accused by her counsel made an application for a no case to answer. Counsel based his application on the following limbs:

(i) The caution interview was unfair and prejudicial.
(ii) The charge was defective.
(iii) The evidence was inconsistent and unreliable.

[3] After hearing the defence and a response from the State, the learned Magistrate in purporting to rule on a no case to answer application was of the view that the charge was defective which he said "renders the other issues raised as moot" and ruled that proceedings be terminated. In ruling that the proceedings were a nullity, he ruled that there was no valid charge before the Court and that the accused should be discharged.

[4] While it is not relevant to the appeal, it is perhaps helpful to say that a charge laid (as this was) under section 97(2)(c) of the Land Transport Act 1998 should provide:

(1) The accused was involved in an impact;
(2) That that impact caused a death;
(3) That the accused's driving was dangerous to a person or person.

None of these elements were set out in the unfortunately worded particulars of offence, thereby leading the learned Magistrate to come to the findings that he did.

[5] The accused appeals on the basis that because she had made a non case submission, on a finding in her favour she should have had the benefit of section 178 of the Criminal Procedure Decree which makes it mandatory if a case has not been made out that she be acquitted rather than discharged. Section 178 reads as follows:

Section 178 – "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 or her to make a defence, the Court shall dismiss the case and shall acquit the accused."

[6] Mr. Babitu for the State has filed very helpful and cogent submissions in reply to the accused's appeal.

[7] Mr. Ram is indeed correct that if his no case submission had been successful then this appellant should have been acquitted rather than discharged. However the Court went further than finding no case; it found the whole proceedings to be a nullity. A nullity is a nothingness, a lack of existence and totally void from the start. As such there has been no case from the beginning and it is not legally possible for the accused to launch a no case to answer submission where there has not been a case at all. Therefore, as the State correctly submits, section 178 does not come into play at all; and the Magistrate quite properly, in relying on the authority of the FCA in Cerevakawalu [2001] 2 FLR, 409 dismissed the charge and discharged the accused.

[8] Reference has been made in the accused's submissions to the fact that the State has now relaunched the prosecution of Ms Fontana under a more appropriate charge. If that be so, then that course of action is open to the State based on the decision of the FCA in Cerevakawalu (supra). If there is a nullity, then there is no acquittal and therefore the State is able to proceed afresh, without the plea of autrefois acquit being available to the accused. In the case of Connelly v DPP [1964] A.C. 1254 the House of Lords looked at the law of autrefois acquit. In his speech Lord Morris of Borth-y-Guest said that for a plea of autrefois acquit to succeed it must be considered whether the crime charged in the later indictment is the same, or in effect the same, as the crime charged in the former indictment and it is immaterial that the facts under examination or the witnesses called in the later proceedings are the same as those in the earlier proceedings.

[9] While it is not a ground in this appeal the accused appears in her submissions to argue that it would be unfair or abusive for the State to relaunch a prosecution against her, given that they have by their first "error" been able to patch up an otherwise "thin" case. This Court has not been called upon to adjudicate such a point by this appeal, the accused relying solely on the ramifications and application of section 178 of the Criminal Procedure Decree; however it would not be for this Court to interfere in the prosecutorial role of the State, and in any event the State properly exercising its powers, assented to by the FCA in Cerevakawalu, cannot be said to be acting prejudicially or oppressively.

[10] The appeal is dismissed.

Paul K. Madigan
JUDGE
At Lautoka
08 July 2011