State v Yakub [2016] FJHC 11; HAR2.2015 (20 January 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL REVISIONAL JURISDICTION

Criminal Revision Case No. HAR 2 of 2015
Nadi Magistrates Court Case No. 1135/2013

BETWEEN:

THE STATE

AND:

MOHAMMED YAKUB
RESPONDENT

Date of Hearing: 10th December, 2015
Date of Ruling: 20th January, 2016

RULING

1. The Respondent was charged with one count of Indecent Assault contrary to Section 212 of the Crimes Decree 44 of 2009 at the Magistrates Court of Fiji at Nadi.
   
2. On 9th October 2015, the learned Magistrate of Nadi 'acquitted' the Responded upholding the preliminary objection raised by the Defence Counsel.
   
3. The Chief Justice, by letter dated 30th October, 2015, forwarded the learned Magistrate's Ruling along with the entire record with a request to review the said ruling of the Magistrates Court.
   
4. Section 260(1) and 260(2) of the Crimes Decree No.44 of 2009 confer jurisdiction on this Court to review any criminal proceedings in the Magistrates Court. The Section reads:
   

(1) The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to —

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court.

(2) The High Court shall take action under sub-section (1) upon the receipt of a report under the hand of the Chief Justice which requests that such action be taken. (emphasis mine)

5. Upon receiving the said request from the Chief Justice pursuant to Section 4(2) Criminal Procedure Decree, this Court issued notices on both parties. Both the State and the Respondent appeared and filed submissions on the matter.
   

Background

6. The Respondent was summoned to appear before the Magistrates Court of Nadi pursuant to Section 81 of the repealed Criminal Procedure Code to answer the charge of Indecent Assault contrary to Section 212 of the Crimes Decree 44 of 2009.
   
7. Having received the said summons, the Respondent appeared before the learned Magistrate through a counsel and raised following preliminary issues for determination:
   
   1. Whether the charge against the Accused was correctly instituted under Section 81 of the Criminal Procedure Code?
      
   2. Whether the charge is defective?
      
8. Police prosecuting officer did not file any objection or submission in response. Having considered the submission filed by the Respondent, the learned Magistrate ruled in favour of the Respondent and acquitted him in the first instance.
   
9. The learned Magistrate cited State v Riogi [2001] FJHC 0026 of 2008, Kaulamoce v State [2009]HAA 0026 of 2008 and DPP v Solomone Tui [1975] 21 FLR 4 in his ruling and held inter alia that:
   

"In the Court's view, this is a clear case of nullity from the very beginning. There is no authority in law to file the charge from the first instance. Prosecution is acting ultra vires by filing a charge under Criminal Procedure Code. (para 3)

In Court's view, the error in this case goes to the very root of the criminal procedure and criminal system on what basis is prosecution filing a charge pursuant to non-existent law.(para 6).

For Prosecution to play the game right, they must comply with the law or the criminal procedures authorised by law. If not, they are fouled and disqualified from playing the game. (para 7).

Analysis

10. The first issue that came before the learned Magistrate for determination was whether the charge against the accused was correctly instituted under Section 81 of the Criminal Procedure Code when the Criminal Procedure Code had already been repealed and replaced by the Criminal Procedure Decree 2009.
    

Defective Summons /Institution of Proceedings

11. Part VII of the Criminal Procedure Decree 2009 deals with institution of proceedings in the Magistrates Court. According to Section 56 (1), criminal proceedings can be instituted by making of a complaint in accordance with that Part; or by bringing a suspect before a Magistrate after the suspect has been arrested without warrant.
    
12. Under Section 56 (5) of the Criminal Procedure Decree 2009, where proceedings are instituted by a police officer or other officer acting in the course of a lawful duty, a formal charge (complaint)duly signed by the police officer or other officer is to be presented to the relevant Magistrates Court.
    
13. Unless such complaint has been laid in the form of a formal charge under sub-section (5), it is the responsibility of the Magistrate, upon receiving any complaint (private complaint), to draw up or cause to be drawn up a formal charge containing a statement of the offence with which the accused is charged.
    
14. When the formal charge is formulated, it is the responsibility of the Magistrate to issue the formal charge and summons in accordance with procedures approved by the Chief Magistrate.
    
15. The duplicate of the summons served under the hand of the learned Magistrate on the Respondent and the Charge filed by the Prosecuting officer are attached to the record.
    

Heading of the summons reads as follows:

CRIMINAL PROCEDURE CODE

(Section 81)

SUMMONS

Heading of the charge reads as follows:

CRIMINAL PROCEDURE CODE

(Section 78)

CHARGE

(Complaint by Public Officer)

16. It is clear that, by filing a charge or complaint, the proceedings in the Magistrates Court was instituted by a police officer. The form the police officer had used, apparently by mistake, was obsolete and carried a heading 'Criminal Procedure Code'.

17. In the same way, the accused was summoned by the Magistrates Court using an obsolete form printed under the repealed Criminal Procedure Code. Having issued the same under his hand, the learned Magistrate, in his ruling, faulted the police officer for filing the charge under a repealed law and acquitted the Respondent when the responsibility of issuance of the charge was on his shoulders.

18. Criminal Procedure Decree 2009 was the law that governed the procedure of all the criminal matters at that time in the Magistrates Court, including filing of charges and issuance of summonses.

19. The purpose of the summons, whether it is under the repealed Criminal Procedure Code or the present Criminal Procedure Decree, is the same. That is to inform or to require the accused to appear at a time and place to be appointed in the summons to answer the charge specified therein.

20. Section 300 of the Criminal Procedure Decree, 2009 provides that:

(2) The forms prescribed in the Schedules to the repealed Criminal Procedure Code shall continue to be the forms to be used under this Decree, until regulations are made to prescribe forms in accordance with section 302, or the Chief Justice exercises the powers under section 286.

21. Accordingly, forms were prescribed in the Schedule to the Criminal Procedure Decree 2009. Comparative scrutiny would reveal that there is no remarkable difference between the prescribed form of summons under Section 81 of the Criminal Procedure Code and the Form No.3 under Section 56 of the Criminal Procedure Decree.

22. Pursuant to Section 76 (3) of the Criminal Procedure Decree 2009, it is required to state shortly the offence with which the person against whom it is issued is charged. In the summons issued to the Respondent, that requirement is complied with. Impugned summons did contain a statement of the offence with which the accused was to be charged. That was sufficient enough to impart a clear idea to the Respondent as to the nature of the charge.

23. Issuance of summons or warrant is governed by Section 57 of the Criminal Procedure Decree which provides as follows:

57. — (1) Upon receiving a complaint and having signed the charge in accordance with the provisions of section 56, the Magistrates Court shall issue either a summons or a warrant to compel the attendance of the accused person before a Magistrates Court having jurisdiction to try the offence alleged to have been committed.

(3) The validity of any proceedings taken in relation to a complaint or charge shall not be affected by –

(a) any defect in the complaint or charge; or

(b) the fact that a summons or warrant was issued without complaint or charge.

24. If any defect in the complaint or charge or non-issuance of the complaint or charge with the summons cannot affect the validity of the proceedings, it is hardly possible to conclude that the defect in the heading of the summons and charge can affect the validity of proceedings instituted therefrom. Still the learned Magistrate found that 'it is a clear case of nullity from the very beginning'.

25. The Respondent's contention and the ruling of the learned Magistrate had apparently been based on the premise that the summons issued on the accused contained a wrong heading and therefore the proceeding instituted thereunder is null and void.

26. The learned Magistrate in his ruling states as follows:

"Defence contention is very simple. Criminal Procedure Code has been repealed in 2009 and replaced with a new law, Criminal Procedure Decree. It is now 6 years, Criminal Procedure Decree has been in operation and yet Prosecution is filing charges in court pursuant to repealed Criminal Procedure Code".

27. The contention advanced by the learned Magistrate to acquit the Respondent is wrong and has no avail in law. There is no way that the recipient of the summons being misled, embarrassed or prejudiced merely because it carried a wrong heading as long as it conveyed a clear information in respect of the charge. Mere mistake in the heading of summons should not vitiate the proceedings if it is not defective in substance.

Defective Charge

28. The second issue was whether the summons had been issued with a defective charge. The learned Magistrate was of the opinion that the charge was defective since the same had been filed under repealed Criminal Procedure Code. In his ruling, he had not specified as to how he came to the conclusion that the charge itself was defective. His conclusion was apparently based on the fact that since the heading of the charge was defective the charge itself was defective.

29. Apart from the heading, the charge served on the respondent, which I reproduce below, does not reveal any defect.

The Statement of Offence (a)

INDECENT ASSAULT: Contrary to Section 212 of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

Mohammed Yakub between 1st day of December, 2012 and 27th day of December 2012 at Nadi in the Western Division, unlawfully and indecently assaulted NEHA NATAZSHA KHAN.

30. In the Schedule 2 of the Criminal Procedure Decree, forms (of charges) prescribed for certain offences [pursuant to Rules made by the Chief Justice under Section 300 (2)] are given. It does not, however, prescribe a form for the offence (Indecent Assault) with which the Respondent was charged.

31. In such a situation, Courts should be guided by other provisions of the Criminal procedure Decree. Information that a charge shall contain is described in Section 58 of the Criminal Procedure Decree in following terms:

(a) a statement of the specific offence or offences with which the accused person is charged; and

(b) such particulars as are necessary for giving reasonable information as to the nature of the offence charged.

32. The manner in which a charge should be framed is described in Section 61 of the Criminal Procedure Decree. Section 61 provides as follows:

(1) A count of a charge or information shall commence with a statement of the offence charged, and this shall be called the statement of offence.

(2) Each statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence.

(3) The charge shall contain a reference to the section of the law creating the offence.

(4) After the statement of the offence, particulars of the offence shall be set out in ordinary language, and the use of technical terms shall not be necessary.

(5) Where any rule of law or any Act, Decree or Promulgation limits the particulars of an offence which are required to be given in a charge or information, nothing in this section shall require any more particulars to be given than those so required.

(6) The forms applying or approved under this Decree (or forms conforming to these forms as nearly as may be) shall be used in cases to which they are applicable; with the statement of offence and the particulars of offence being varied according to the circumstances of each case.

(7) Where a charge or information contains more than one count, the counts shall be numbered consecutively.

33. It is obvious that the charge the Respondent was called upon to answer complied with the law and contained all the necessary information needed to prepare for his defence.

34. The learned Magistrate cited three judgments in his ruling. Unfortunately the judgements he cited do not support his contention.

35. In State v Riogi [2001] FJHC 01, a Sedition charge was held not defective because it had all the essential elements of the offence of Sedition.

36. In Kaulamoce v State [2009], Mataitoga J. cited Grant CJ's relevant observation in DPP v Solomone Tui [1975] 21 FLR 4 and held that the charge of Indecent Assault was defective since it lacked essential elements of the offence under Section 154(1) of the Penal Code.

37. Grant CJ in Solomone Tui (supra) had clearly pointed out the instances of 'fundamental errors in the charge going to the root of the matter' which would render criminal proceedings null and void. Referring to Section 80(2) of the Criminal Procedure Code (this Section is similar to Section 57(3) of the Criminal Procedure Decree cited above) Grant CJ observed:

"Despite its apparent scope, it has been held that the provisions of this section cannot validate a fundamental error going to the root of the matter; such as the failure to include in the charge a necessary ingredient of the offence in question, duplicity in a charge, want of jurisdiction, or a charge which discloses no offence known to law" (emphasis mine)

38. The above mentioned observation of Grant CJ quoted by the learned Magistrate in his ruling had no relevancy to the case in hand before him as those 'fundamental errors' described by Grant CJ were not present in the charge presented to the Respondent. Further, it had satisfied the fundamental requirement of a charge in a criminal case which Grant CJ vividly explained as follows:

" It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them".

39. Although the charge does not specify the manner in which the alleged sexual assault took place, information contained in it was sufficient enough to understand the precise nature of the charge against the respondent so as to be in a position to put forward his defence and to direct his evidence to meet the charge.

40. The obligation on the part of the Magistrates to ensure that the charges are properly framed is well illustrated in Jeru Din s/o Kali Din v Reginam (18 F.L.R). It was observed:

"...this is yet another instance which demonstrates the need for greater care to be exercised by those responsible for the preparation of charges and for the magistrates to pay closer regard to their duty of ensuring that charges preferred against accused persons in their courts are properly famed..."

41. And in Simione v. Reginam (Crim. App No. 111 of 1973) it was stated:

.."This is yet another example of rampant carelessness in the framing of charges and of the need for the magistrate to carefully check all charges preferred".

42. Assuming that the impugned charge and the manner in which the proceedings were instituted were defective, still the learned Magistrate was not justified in his approach when he acquitted the respondent in the first instance.

43. As the primary obligation of ensuring that the charge is properly farmed and served is cast upon the Magistrate himself, the correct approach would have been to direct the prosecutor to follow the correct procedure or amend the charge. The maximum that the learned Magistrate should have done was to discharge the accused and not acquit. Dereliction of the duty on the part of the police or Magistrate should not be allowed to stand in the way of accessing justice.

Acquittal is wrong in principle

44. An acquittal is when the judge finds the accused not guilty upon an evidentiary basis. The accused has to go through the whole trial or until the judge finds no case to answer at the close of the prosecution case before he can be acquitted.

45. A dismissal is when the judge throws out the case before going to trial for a specific reason. The dismissal can happen even before the trial begins. When a case is dismissed, the accused is discharged not acquitted. On technical grounds, a person accused of a crime cannot go home as a clean man as the question of his guilt never gets tried. As such, a case that is dismissed can sometimes be re-filed in the future.

46. On the other hand, an acquittal cannot be re-filed in the future. If a person is acquitted, this means that the case cannot be appealed due to double jeopardy rules (i.e., they can't be tried twice for the same crime).

47. This cardinal principle is embedded in our legal system. In State v Wainiqolo (supra) Justice Pain, having considered Sections 210 and 215 of the repealed Criminal Procedure Code (similar to Section 178 and 183 of the Criminal Procedure Decree) made following observations:

However, the learned Magistrate went even further and said "Both accused No.1 and 3 are acquitted forthwith". 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).

48. This view was affirmed by Justice Shameem in Deo v Jattan [2002] FJHC 180; HAA0077J.2002S (11 November 2002)

49. In all the circumstances, the order made by the learned Magistrate cannot be justified. I am satisfied that the learned Magistrate of Nadi was erred in law to acquit the respondent in the first instance.

50. Accordingly, I make the following orders:

a. The Ruling made in the Magistrates Court of Nadi on 9th October 2015 acquitting the Respondent on count of Sexual Assault is quashed.

b. The case is remitted back to the Nadi Magistrates Court for the hearing of the charge against the Respondent.

c. The Registry is directed to forward a copy of this ruling to the Chief Justice and the Chief Magistrate.

d. The Registry is also directed to forward this case record to the Nadi Magistrates Court forthwith.

e. The Respondent is ordered to appear in the Nadi Magistrates Court on 01st February 2016.

Aruna Aluthge
Judge

At Lautoka
20th January, 2016

Solicitors: Office of the Director of Public Prosecution for the State

K. Law Chambers & Partners for Respondent