Timo v State [2015] FJHC 1024; HAA38.2015 (22 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 38 OF 2015

BETWEEN:

NACANI TIMO
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Appellant in person
Ms. S. Kiran for the Respondent

Date of Hearing : 3rd of December 2015
Date of Judgment : 22nd of December 2015

JUDGMENT

1. The Appellant was charged in the magistrate court for one count of Burglary contrary to Section 312(1) of the Crimes Decree and one count of Theft contrary to Section 291(1) of the Crimes Decree. The Appellant pleaded not guilty for these two counts, wherefore the matter was set down for hearing on 17th of August 2015. On the date of hearing, the Appellant confirmed that he was ready to proceed the hearing, but the prosecution made an application to dismiss the proceedings under Section 171(1) (b) of the Criminal Proceedings Decree on the ground that the complainant has migrated. The learned Magistrate has then dismissed the charge pursuant to Section 171(1) (b) of the Criminal Procedure Decree. The Appellant now appeals against the said order of the learned Magistrate on the ground that the learned Magistrate erred and failed to make an order of actual.
   
2. Having carefully perused the copy of the record of the proceedings in the Magistrates court, I invited the parties to make submissions not only on the ground of appeal advanced by the Appellant, but also on the issue whether the learned Magistrate was correct in dismissing the action pursuant to the Section 171(1) (b) of the Criminal Procedure Decree.
   
3. I express my gratitude to the counsel for the Respondent for fling very informative and useful submissions. The learned counsel for the Respondent submitted that only Sections 178 and 183 (b) of the Criminal Procedure Decree have allowed the Magistrate to acquit an accused. Section 171 only allows the magistrate to discharge the accused. The learned Counsel for the Respondent further stated that the prosecution was present on the date of the hearing, wherefore the learned Magistrate had erred in law in dismissing the action pursuant to Section 171 (1) (b) of the Criminal Procedure Decree.
   
4. Having considered the background of this appeal, the copy of the record of proceedings in the Magistrates court and the respective submissions of the parties, I now proceed to pronounce my judgment as follows.
   
5. Justice Pain in Sate v Wainiqolo (1998) FJHC29; Haa0117d.97s. (5 March 1998) having considered Sections 210 and 215 of the repealed Criminal Procedure Code (now Sections 178 and 183 of the Criminal Procedure Decree) made the following observation that;
   

"I can find no provision in the Criminal Procedure Code which enables a Magistrate to acquit an accused because the prosecutor fails to appear. The only provisions for acquittal that I am aware of are Section 210 (which provides for an acquittal if there is no case to answer) and Section 215 (which provides for acquittal after a defended hearing)"

6. The observation of Justice Pain in Wainiqolo (supra) has been accepted and endorsed by Justice Shameem in Rajendra Deo v Ratnesh Lal Jattan (Criminal Appeal No; HAA0077 of 2002S). Having concurred with the observation made by justice Pain and Justice Shameem, I find that only Sections 169 (2) (b) (i), 178, and 183 (b) of the Criminal Procedure Decree allow the Magistrate to acquit an accused. Hence, Section 171(1) (b) does not give the Magistrate a jurisdiction to acquit an accused but only to discharge.
   
7. I now turn on to the next issue that is whether the learned Magistrate could dismiss an action pursuant to Section 171 (1) (b) of the Criminal Procedure Decree when the prosecution is present and has appeared before the court.
   
8. The Procedure in trials before the Magistrates court has been stipulated under Part XIII of the Criminal Procedure Decree. The issue of non appearance of the parties has been dealt in Section 166 and 171 of the Decree.
   
9. Justice Pain in Wainiqolo (supra) held that Section 198 of the Criminal Procedure Code, which is equivalent to Section 166 of the present Decree deals only with the non appearance of the complainant on the first calling date in the Magistrates court and subsequent dates have been dealt in Section 203, which is equivalent to Section 171 of the Criminal Procedure Decree.
10. In this instant case, the learned Magistrate did not make this order to dismiss the action on the first calling date. Hence, section 166 has no relevancy in this matter. The applicable provision is Section 171 of the Criminal Procedure Decree.
    
11. Section 171(1) (b) of the Criminal Procedure Decree states that;
    
    1. If at the time or place to which the hearing or further hearing is adjourned-
       
       2. if the complainant does not appear the court may dismiss the charge with or without cost,
          
12. According to Section 171 (1) (b), the Magistrate has discretion to dismiss the charge if the complainant fails to appear on the date of adjourned hearing or further hearing.
    
13. The learned counsel for the prosecution submitted that the complainant in this case is the state, which was represented by a police prosecutor. Hence, the learned Magistrate erred in law in dismissing the action on the ground that the complainant has migrated. The learned counsel for the prosecution admitted in her submission that the police prosecutor had actually made an application to dismiss the action on the ground that the complainant has migrated, but still it was the discretion of the learned Magistrate to properly exercise his judicial power according to applicable provisions.
    
14. Accordingly the main issue is to be determine as who is the complainant as stated under Section 171 (1) (b) of the Decree.
    
15. Section 56 of the Criminal Procedure Decree deals with the institution of proceedings in the Magistrates court, where it states that;
    
    1. Criminal Proceedings may be instituted by –
       
       1. the making of a complaint in accordance with this part, or
          
       2. by bringing a person before a magistrate after the person has been arrested without a warrant,
          
    2. Any person who believes from a reasonable and probable cause that an offence has been committed by any person may files a complaint with a Magistrates court,
       
    3. A complaint may be made under this section orally or in writing,
       
    4. If a complaint may be made orally it shall be reduced to writing by the Magistrates court, and shall be signed by the complainant and the officer of the magistrates court authorised to receive the complaint,
       
    5. Where proceedings are instituted by a police officer or other officer acting in the course of a lawful duty, a formal charge duly signed by the police officer or other officer may be presented to the magistrates court and shall, for the purpose of this Decree, be deemed to be a complaint"
       
16. Butterworths' Concise Australian Legal Dictionary defines the word "complainant" as the person who lodges a complaint to a competent decision maker, that is a tribunal, ombudsman or board. It further defines the complainant as the person, not necessarily the victim, who commences criminal proceedings.
    
17. In line with the aforementioned definition, the Supreme Court of Queensland in Potts v Brooks, ex party Potts ( 1983) 2 Qd R 48) held that;
    

"the complainant means the person who makes the complaint before a justice of the peace and initiate proceedings and does not mean necessarily the person injured by the conduct complained of".

18. In view of the Section 56 of the Criminal Procedure Decree and the above mentioned definition, it is my opinion that the complainant in the proceedings of the Magistrates court is the person who made the complaint to the magistrates court, but not necessarily the victim or the aggrieved party in that alleged incident or the person who reported the matter to the police.
    
19. Justice Pain in Wainiqolo (supra) found that the complainant in the magistrate court is the police officer who signed the complaint under Section 78 of the Criminal Procedure Code, ( Now Section 56 of the Criminal Procedure Decree), where his lordship held that;
    

"In term of Section 203, the complainant did not appear. The Complainant is the police officer who signed the complaint under Section 78. Usually, a police prosecutor conducts the prosecution in the Magistrates court and this is sufficient appearance for a complainant in terms of Section 198(2). Surprisingly, that appearance by a police officer is not incorporated into the provision of Section 203. However, that matter is purely academic because nobody appeared for the prosecution. Accordingly, the section applied and the learned Magistrate may dismiss the charge".

20. In fact, Justice Pain has not extended his interpretation to interpret the complainant as referred under Section 203 of the Code, (Now Section 171 of the present Decree). The Magistrate court is the court of summary procedures and every date of proceedings is considered as a hearing date. As mentioned before, Section 166 deals with the first date of the hearing, and Section 171 deals with other subsequent dates of the proceedings. Wherefore, it is my opinion that the interpretation given by Justice Pain in Wainigolo (supra) could extend to interpret the complainant referred under Section 171(1) (b) of the Decree. Accordingly, the complainant referred under Section 171 (1) (b) is the person who complained to the magistrate court and not necessarily the victim or the aggrieved party in the alleged incident.
    
21. The charges against the Appellant were filed in the Magistrates court by the Police Prosecution officer, Lautoka on 24th of July 2013. Hence the complainant of this action is the police prosecutor who signed the charge.
    
22. On the 17th of August 2015, the prosecutor and the accused were present before the learned Magistrate, hence the learned Magistrate should have proceeded the trial. The Supreme Court of Fiji in State v Matotabua ( 2012) FJSC 14; CAV005.2009 ( 9 May 2012) held that;
    

"The directive to the court is provided by Section 200, where both parties attend by legal practitioners (here a police prosecutor for the prosecution). That directive is that ' the court shall proceed to hear the charge" (Now section 168)".

23. The person who is the victim of this alleged incident or the person who reported the matter to the police is not the complainant in this proceeding. They are the witnesses of the prosecution. Under such circumstances, the learned Magistrate would have proceeded the trial pursuant to Section 174 and 177 of the Decree and invited the prosecution to produce evidence.
    
24. If the victim was not present to give evidence as a witness, the prosecution could have either sought an adjournment or withdrawn the charges with the consent of the court under Section 169. The other option that the prosecution would have employed, is to offer no evidence, which would have allowed the learned Magistrate to rule that there is no case to answer and acquit the accused pursuant to Section 178 of the Decree.
    
25. Having carefully perused the copy of the proceedings in the Magistrates court and the original file in the Magistrates court, I do not find any affidavit of service or report to confirm that the prosecution has properly served witness's summons to the said complainant or to the victim of this case. Under such circumstances, it is a judicial responsibility of the learned Magistrate to ensure whether the prosecution has been properly summoned or informed the victim before he makes any order of dismissal.
    
26. In view of the reasons discussed above, it is my opinion that the learned Magistrate has erroneously dismissed this action pursuant to Section 171 (1) (b) of the Criminal Proceudre Decree on the ground of non appearance of the complainant.
    
27. In line with the observation made by Justice Shameem in Rajendra Deo v Ratnesh Lal Jattan ( Criminal Appeal No; HAA0077 of 2002S), I now proceed to determine whether the result would be the same, had the learned Magistrate correctly applied the applicable provisions in this matter. Justice Shameem in Rajendra Deo (supra) held that;
    

"The learned Magistrate erred in dismissing the charge under Section 198. However the effect of a dismissal under either section 198 or 203, is the same. It leads to a discharge which permits the prosecutor to lay a fresh charge or complaint. The discretion to dismiss a charge must however be exercised judicially......

This appeal succeeds to the extent that the dismissal was ordered under the wrong section. However, that is an error easily remedied by this court. The order is set aside and substituted with an order for dismissal under Section 203 of the Criminal Procedure Code".

28. Had the prosecution sough an adjournment on the ground that the main complainant has migrated, the learned Magistrate would have exercised his discretion under Section 170 of the Criminal Procedure Decree in order to grant an adjournment.
    
29. Had the learned Magistrate proceeded the trial pursuant to Section 174 and 177 (1) of the Criminal Procedure code, the prosecution would not have been able to offer the evidence of the victim, which would have eventually allowed the learned Magistrate to rule that there is no case to answer and acquit the accused pursuant to Section 178 of the Criminal Procedure Decree.
    
30. If the prosecution sough the consent of the court to withdraw the charges pursuant to Section 169 (1) of the Decree, the learned Magistrate would have either discharged or acquitted the accused pursuant to Section 169 (2) (b) of the Decree.
31. Accordingly, it is my opinion that the error made by the learned Magistrate in dismissing the action under Section 171(1) (b) of the Decree could not be remedied as in the Rajendra Dea (supra).
    
32. Having considered the reasons discussed above, I make the following orders that;
    
    • (a) The order made by the Learned Magistrate in the magistrates court on 17th of August 2015 dismissing the charges against the Appellant is hereby set aside,
      
    • (b) The matter is remitted back to the same Learned Magistrate for hearing of charges against the Appellant to be continued.
      

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
22nd of December 2015

Solicitors : Office of the Director of Public Prosecutions