State v Lal [2020] FJHC 846; HAA08.2020 (15 October 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 08 OF 2020

BETWEEN

STATE

APPELLANT

A N D

SHEENAL LAL

RESPONDENT

Counsel : Mr. T. Tuenuku for the Appellant

: Mr. A. Datt for the Respondent.

Date of Hearing : 23^rd of September, 2020
Date of Judgement : 15^th of October, 2020

JUDGMENT

Background

1. This is an appeal by the DPP (Director of Public Prosecutions) against an order of Acquittal made by the Magistrates’ Court of Rakiraki.
   
2. The Respondent was charged in the Magistrates’ Court of Rakiraki with the following offence;
   

COUNT 1
Statement of offence

Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Act.

Particulars of Offence

Sheenal Lal, on the 10^th day of May, 2018 at Penang School, Rakiraki in the Western Division assaulted one Nivriti Naucukidi thereby causing her actual bodily harm.

3. The Respondent has pleaded not guilty to the said charge and the matter has proceeded to trial. When this matter was taken up for trial on the 23^rd of January 2020, the prosecution moved for a screen covering the accused to the witness on the basis the witness was 9 years old. The Court having listened to both parties differed the screen being placed, until the court hear from the said witness.
   
4. The witness has been present there in the Court with her mother. It is apparent that the witness has remained silent without speaking a word in court and even the details of the witness, as to name, age and the date of birth, were provided by the mother.
   
5. The court has been vacant and no one other than the parties of this matter were present there. When the witness remained silent without answering a single question, the court has stood down the matter for the prosecution to consider their next step.
   
6. After some time, the prosecution has informed the court that they are ready and when the court resumed, prosecution has informed that they were unsuccessful and closed the prosecution case without calling any evidence. Then the defence has made an application under section 178 of the Criminal Procedure Act on the basis of ‘no case to answer’ and the learned trial magistrate upholding the said application, has proceeded to acquit the accused.
   

Grounds of Appeal

7. The Appellant being dissatisfied of the said order, appeals to this Court on 19^th of February, 2020 within the allowed time, on the following grounds.
   
   1. That the Learned Magistrate erred in law and in fact when he failed to deal with the application for a screen first before calling the complainant in Court.
      
   2. That the Learned Magistrate erred in law and in fact when he acquitted the Respondent without giving an adequate opportunity to the State to adjourn the matter taking into account the circumstances of the complainant.
      
8. The Appellant and the Respondent having filed their submissions in writing, and the Court having heard their oral submissions at the hearing, the matter was fixed for the judgment today. I have carefully considered all the available material before me and the submissions made by the parties.

Analysis

9. The first alleged ground is on the failure by the Learned Magistrate to allow the request for the screen. Though I agree it would have been better if the protective screen was allowed, I should consider whether any prejudice was caused to the prosecution by deferring the said request. It should be noted that the learned Magistrate did not refuse the application for a screen but only differed allowing the screen, till a later time. When the witness refused to speak in Court, I do not see the prosecution renewing their application for the screen.
   
10. This brings us to the issue whether the Court is bound to allow all applications for the protective measures. While I approve and appreciate His Lordship Justice Aluthge’s observations in State v Cawi [2018] FJHC 965, that the special measures should not be considered as given out of kindness of the defence, it should also be noted that they should not be granted as for the asking or as a right by the prosecution too. The special measures should only be used when necessary, balancing the scales of justice and upholding the rights of the parties, of a fair trial.
    
11. The learned Counsel for the Appellant states in his submissions that;
    
    7. “............The use of the screen would have minimised the stress that the 9 year old complainant had to go through in Court. By deferring the use of the screen, the learned Magistrate had exposed the complainant to face the respondent physically in Court and thereby causing the complainant to be shy and even the complainant to remain silent”
       
12. The question is if the requested screen was provided, would it have opened up the witness? It should be noted that by the time this case was taken up, the respondent was no longer a teacher of the complainant. Further, when the Court asked ‘should the accused be sent out’, still the witness has remained silent. If the visible presence of the respondent was the cause of her alleged unusual silence, she would have jumped at the proposal. Therefore it lacks any concrete material before this Court to conclude that things should have been different if the screen was provided. In my view mere speculation that things may have been different is insufficient for this court to act upon.
    
13. Therefore, I find the first alleged ground of appeal lacks any merit.
    
14. The second ground of appeal is as to non-granting of an adequate opportunity to State to adjourn the matter. It should first be noted that at no time the prosecution has moved for an adjournment. However, the Court on its’ own has given a 30 minute break for the prosecution to decide their next step when the witness refrained from testifying. Before the expiration of the given time the prosecution has informed the Court of their readiness and the sittings had resumed. In my view, the Court is not bound to offer any adjournments ex mero motu. It would have been different if the prosecution moved for an adjournment and the Court refused such. In absence of any such application, or circumstances, this ground too fails.
    
15. The prosecution has closed their case without offering any evidence. It is the duty of the prosecution to prove the alleged offence beyond reasonable doubt. In absence of any evidence the Court had no choice but to allow the application made by defence under section 178 of the Criminal Procedure Act and to acquit the accused.
    
16. Therefore, I dismiss the appeal, confirming the acquittal entered by the learned Magistrate.
    

Chamath S. Morais
Judge

At Lautoka

15^th of October, 2020
Solicitors: Office of the Director of Public Prosecutions, Lautoka, for the Appellant
Messrs Dayal Lawyers, Ba, for the Respondent