State v Singh [2013] FJHC 109; HAA001.2013 (14 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
Criminal Appeal No: HAA001 of 2013

BETWEEN:

THE STATE
Appellant

AND:

AMRITA RAJNI SINGH
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. L. Fotofili (25 January) for State
Mr. M. Korovou (8 March) for State
Ms P. Narayan for Respondent

Dates of Hearing : 25 January 2013, 8 March 2013
Date of Judgment : 14 March 2013

JUDGMENT

[1] On the 25th October 2012 in the Magistrates' Court at Suva, a learned Resident Magistrate acquitted and discharged the respondent of a case of dangerous driving occasioning grievous bodily harm contrary to sections 97(4)(b)(c) and 114 of Land Transport Act No. 35 of 1998.

[2] The brief facts of the case were that the respondent was alleged to have driven her motor vehicle at a dangerous speed on the 6th September 2007 in Lami and had run into a young 13 year old boy, breaking his right leg.

[3] The respondent first appeared in the Court below on the 18th March 2008. After numerous delays the case for the prosecution was heard by Magistrate Ms Muir from June 2009 until she found a case to answer on 29th September 2009. Without the defence case being heard, the matter fell into abeyance until 29th November 2011 when counsel for the defence made an application to have the matter tried de novo, Ms Muir having left the judiciary. Counsel for the prosecution is on record as stating that the State had no objection to the application. Mr. Liyanage, the new Magistrate (as he then was) seized of the case, ordered a trial de novo and fixed new trial dates of 18th and 19th April 2012.

[4] On the 19th April 2012, the prosecution was not ready for hearing, despite the 5 month interval and the prosecutor appears from the record to have wanted to resile from his agreement to a trial de novo. New dates of hearing were fixed for 13th and 14th August 2012. On the 13th August the prosecution was again not ready, they not having summonsed any witnesses for the hearing.

[5] On the 2nd day allocated (14th August 2012) they produced three out of five witnesses and asked to be part heard. Defence counsel strongly objected to the application, but it was granted and yet further dates of hearing were fixed for 23rd and 25th October 2012.

[6] The Court could not get to the matter on 23rd October but on the 25th October, the prosecution was still not ready to proceed and asked that the trial date be vacated.

[7] The learned Magistrate obviously frustrated at the lack of will of the prosecution to proceed three times, acquitted and discharged the accused pursuant to section 178 of the Criminal Procedure Decree on the basis that no evidence was being offered against the accused.

[8] The Director of Public Prosecutions appeals this acquittal, the appeal being timely and with the requisite consent. The sole ground of appeal is that "the learned Magistrate erred in law and in fact when acquitting the accused but should have exercised his judicial discretion to adjourn the trial on 25th October 2012 despite the prosecution not having summonsed their witnesses since judicial discretion required the learned Magistrate to consider the overall interests of justice." The ground of appeal then goes on to list four ancillary matters which the appellant deems to be points of justice that should have been considered.

[9] Two of the points raised by the appellant concern matters that transpired during the time when Ms Muir was seized of the matter. However once a trial de novo has been ordered all matters that have taken place earlier were expunged from the record and both parties approach the trial with a "clean slate." Any delay or improper behavior of the defence alleged by the prosecution to have occurred in the earlier proceedings is totally irrelevant and cannot be considered in this appeal.

[10] The thrust of the State submissions and in oral argument before me by the State is that they wish to appeal the decision of the Magistrate to order a trial de novo. This is not an appeal against that order, nor could it be, given that the record shows without ambiguity that the prosecutor at the time consented to the defence application to have the matter heard de novo.

[11] Once that order had been made the prosecution was given at least three different hearing dates to present their evidence but they were not ready on any of them. At each date assigned counsel for the prosecution appeared from the record to be asking time to get instructions on the question of trial de novo and was making no attempt whatsoever to expedite hearing of the case.

[12] On the third date of hearing given to the prosecution, the State was still not ready to proceed when the Magistrate exercised his judicial discretion to acquit the accused.

Analysis

[13] The Court agrees with the appellant that in exercising this discretion, the Court below had to "consider the overall interests of justice" but that does not necessarily mean that the interests of the accused are to be ignored. The accused was brought up for trial on three dates over a period of nearly a year and nothing happened to progress the trial. In the interests of justice, her rights to a fair and speedy hearing had to be considered. The State cannot expect or even demand that they have a new date for hearing whenever they want it. The rights of the parties have to be balanced and the rights of the State are no greater than the rights of the respondent/accused.

[14] It is unfortunate that so much time and effort has been wasted in the written submissions and in oral argument on matters irrelevant to the appeal. Of course with counsel for the appellant consenting to the order for a trial de novo, it is almost impossible for the State to resile from that position with the result that anything occurring before that is totally irrelevant. Put into context, the disinclination of the State to call evidence on three occasions allowed to it by the Magistrate for reasons that had become irrelevant displayed a total disregard for the DPP's duty to prosecute fairly, and with all due celerity.

[15] The order of the Magistrate to acquit the accused in the light of no evidence being produced was well within his powers and his order is the exercise of his discretion. It has long been recognized in the appellate courts that discretion exercised below will not be lightly interfered with: it must be shown that the tribunal exercising the discretion was misled or acted on erroneous information.

[16] The Court of Appeal, in Plastic Manufacturing (Fiji) Ltd. v. ICI Fiji Ltd. (1984) FJLR 103 said this:

"It is clear law that an appellate court has power to consider an appeal against the refusal of a judge at first instance to grant an adjournment. Such an appeal is against the exercise of a discretion: the normal rules governing appeals against the exercise of discretion must apply. Prima facie, the question of adjournment or not is one for the discretion of the trial judge: an appellate court will not interfere unless the exercise of the discretion has caused an injustice."

Although this was said in the course of a civil appeal, the dicta are still applicable and good authority in a criminal appeal.

[17] The DPP cannot point to an "injustice" in this case; the State was given ample opportunity to marshal their resources and put their evidence before the Court. Instead they appear from the record to have been running in circles trying to find a way to override the unfortunate concession of the Police Prosecutor on 29th November 2011.

[18] The appeal is totally without merit and it is dismissed. The orders of the Court below to dismiss the case and acquit the accused are confirmed.

Paul K. Madigan
JUDGE

At Suva
14th March 2013