State v Dayal [2000] FJLawRp 50; [2000] 1 FLR 195 (6 September 2000)

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Other negligent acts causing harm - appeal against discharge - no appearance by prosecutor - delayed - whether Magistrate exercised discretion fairly, reasonably and judiciously to discharge the accused - Magistrate did not enquire whether complainant present - Criminal Procedure Code ss198, 201(2)(b), 202, 203(1), 204, 219, Penal Code s239

On the hearing date, there was no appearance by the prosecutor from the DPP's office. The case was stood down, and upon being recalled, there was still no appearance by the prosecutor and the magistrate discharged the accused. The magistrate did not enquire whether the complainant was present. The State appealed on the ground that the magistrate failed to exercise his discretion fairly, reasonably and judiciously to discharge the accused. The effect of the discharge, due to time limitations meant the accused could not be re-charged.

Held - (1) The fact that no formal application is made for an adjournment does not suggest that the magistrate has an unfettered discretion to dismiss. There is an onerous duty of the Magistrate to enquire whether an adjournment is appropriate, and exercise his discretion to otherwise dismiss judiciously, considering the short duration between first call and the hearing date, and the interests of the State and the complainant and the whereabouts of the Prosecution.

(2) If result of discharge defeats the rights of parties altogether and causes injustice to one or other of the parties, an appellate court has power to review such an order.

Magistrate's order discharging accused is set aside. Charge is reinstated and referred back to Magistrate to set a hearing date. Respondent bailed to reappear in court.

Cases referred to in judgment
appl State v Livario Radrega & David Lal HAA 0041/96S
appl State v Saiyad Iqbal Crm App 125/99S, HAA0037/98S
appl Maxwell v Keun (1921) 1 KB 645 C.A.
appl R v Birmingham Justice ex p Lam & Anor (1983) 3 All ER 23
ref Dudley Justices, ex parte Blatchford (1992) 156 JP 609
cons R v Swansea Justice and Davies ex parte DPP 154 JP 709

This is an appeal from the decision of the Ba Magistrates Court to discharge the accused in Criminal case 80/2000. The Accused/Respondent was charged with the offence of Other Negligent Acts Causing Harm - contrary to section 239 of the Penal Code. This offence carries a maximum sentence of 6 months imprisonment.

The case was fixed for hearing on 14 April 2000. When the matter was first called there was no appearance by the Prosecution. The accused was present with his Counsel. The record states that the case was "stood down for DPP". It was later recalled. There was again no appearance by the Prosecution. The Court record then follows:-

G.P . Shankar	:	Ask matter be struck out, Accused discharged.

Court	:	Is there any representative of DPP?

Clerks	:	No

Court	:	I have especially come for this case to Ba from Lautoka.

		Both parties are aware. Waste of time and money

Accused discharged.

It is not clear from the records under what provision of the CPC the accused was discharged. However, the submissions suggest that the learned Magistrate exercised his discretion under section 198 of the CPC. A discharge could also be entertained under Section 201(2)(b). However, since there was no prosecutor present to seek withdrawal of the complaint this section is not relevant. Section 198 of the CPC states:

"if, in any case which a magistrates' court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his barrister and solicitor, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit."

In his Petition of Appeal the Acting DPP had stated in paras 3 and 4 as follows:

(3) That the learned trial Magistrate summarily dismissed the charge and thus dismissed the accused after the State Prosecutor was delayed for fifteen minutes and did not appear in Court;

(4) That the learned trial Magistrate did not adjourn the case to make enquiries about the whereabouts of the State Prosecutor from Suva.

The basic ground of Appeal is then stated in para 5: "That the learned magistrate erred in law and in fact in not exercising his discretion judiciously in discharging the accused".

In her oral submission State Counsel stated that the Prosecutor was from the DPP's Office, Suva. Since a Police Officer was the accused the DPP was conducting the Prosecution. The Prosecutor had rung Ba Court and stated that he was delayed. The basic thrust of her submissions was that there was injustice to the complainant in the way the learned Magistrate exercised his discretion.

Mr. Shankar submitted that section 198 of the CPC stated that "... the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn ..." Since no reason was advanced to adjourn, the Court was within its jurisdiction to dismiss. The Court was not informed about the delay of the Prosecution. He further submitted that the provision is in mandatory terms "shall" dismiss unlike the U.K. provisions in which the justice, "may" dismiss. He further submitted that section 202 of the CPC on adjournments supported his proposition. He noted that section 204 of the CPC provided that a conviction of an accused in his absence could be set aside. There was no identical provision for the Prosecution.

The amended section 202 of the CPC on adjournments states in subsection (2) that "good cause includes, but is not limited to, the reasonably excusable absence of a party or witness or of a party's legal practitioner". Further subsection (6) states "If a case is adjourned, the Magistrate may not dismiss it for want of prosecution and must, before adjudicating on the case, allow the Prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing."

I cannot understand why no police prosecutor appeared for the Prosecution. On 20/03/2000 when the case was first called a Police Officer appeared for the Prosecution. The accused pleaded not guilty and the trial date of 14/04/2000 was set. It is surprising that when the case was called twice on 14/04/00 no Police Prosecutor appeared to explain the absence or delay of the State Counsel from the DPP's office. From my experience as a Resident Magistrate Police prosecutors would always appear for the DPP's office and explain the position of the DPP's counsel. A Prosecutor had to be present to seek an adjournment or offer no evidence for the Magistrate to exercise his discretion to discharge.

There is no record whether the complainant Janendra Reddy s/o Krishna Reddy was present to give evidence. It is clear from the context in which the term "complainant" is used in Section 198 of the CPC that Janendra Reddy was the complainant. It was his "barrister and solicitor" which under subsection (2) includes a public prosecutor who was not present. It is clear from the record that the learned Magistrate did not enquire whether the complainant was present or not. If he was then he could not have dismissed the charge.

If the complainant was not present then the Court is given a discretion, in the following terms "... the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case..." The fact that no formal application is made for an adjournment does not suggest that the Magistrate has an unfettered discretion to dismiss. In my view there is a more onerous burden for the Magistrate to consider the issue of adjournment since he is given a discretion to do so by Section 198. Not only is he given a discretion to "dismiss the charge" but also to consider an adjournment "for some reason". It is clear from the authorities that any judicial discretion has to be exercised reasonably and fairly. The suggestion by Defence Counsel that the use of "shall" suggests a mandatory or unfettered discretion to dismiss is not compelling. Section 203(1) of the CPC also deals with the non appearance of the complainant stating that "... if the complainant does not appear the Court may dismiss the charge ..." (emphasis added).

It is evident from the record that the learned Magistrate did not direct his mind to the question of an adjournment. He simply states "I have especially come for this case to Ba from Lautoka. Both parties are aware waste of time and money - Accused discharged." One can understand the learned Magistrate's concern for the waste of public funds given that he was specially called to Ba to conduct this trial. However, one should also note that the case was first called on 20/03/2000 when the plea was taken. The hearing of 14/04/00 was the first hearing date set. This was a very quick hearing given the circumstances pertaining in our Magistrates Courts. It is evident that since a Police Officer was the accused and he may be under interdiction the case was given priority. However, the interest of the State and complainant is also a relevant consideration.

The principles applicable when a Court is faced with the issue of dismissal or adjournment have been succinctly dealt by Justice Pathik in State v Livario Radrega and David Lal Cr App. 0041 of 1996S; and State v Saiyad Iqbal Cr App. 125 of 1999S. In Maxwell v Keun (1921) 1 KB 645, 653 C.A., Lord Atkin had stated; "I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand if it appears that the result of the order made below is to defeat the rights of the parties altogether and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so." (emphasis added)

In R v Birmingham Justice ex p. Lamb and Another (1983) 3 AER 23, Woolf J. stated "when exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, "they must be just not only to the defendants but also to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment means 'that that is an inevitable consequence." In this case the dismissal of the charge, without considering an adjournment, meant that the accused is in effect acquitted without a hearing on the merits. Due to time limitations under Section 219 of the CPC, he cannot be re-charged.

According to Blackstones (1999 Edition D18. 14 p 1474) the discretion to dismiss an information is not conferred for punitive purpose. "The justices must not, therefore, exercise their power to dismiss where they know that a prosecutor is on the way to Court, and that the case is otherwise-ready to be presented (Henderson Justices, ex parte DPP [1994] QB 167; see also Dudley Justices, ex parte Blatchford (1992) 156 JP 609)" In the State v Saiyad Iqbal s/o S Kutty Cr. App. HAA0037 of 1998S Justice Townsley dealt with a situation similar to this case. In that case the counsel for the DPP had gone to the wrong Court in Suva. In the absence of the Prosecutor the learned Magistrate, on Defence application, acquitted the accused. As Justice Townsley stated: "Even more surprisingly the learned Magistrate granted the application, without adjourning to enquire the whereabouts of the DPP's Counsel (p.3 emphasis added). While the case of Saiyad Iqbal was purportedly dealt under s.201 of the CPC the principles in terms of exercising a discretion to dismiss is similar - it has to be exercised judiciously. In R v Swansea Justice and Davies ex parte DPP 154 JP 709 at 173, Lord Mustill stated that "although slackness and fault is only one element in the balancing exercise, it is only one element and the justices are there to try cases and not to punish the prosecuting authorities."

The Court has considered all the circumstances of this case and the manner in which the accused was discharged. The effect of the discharge and the fact that the accused was only charged in March 2000 is also noted. The discretion to discharge the accused without considering the issue of an adjournment was a wrongful exercise of judicial discretion.

(ii) The charge of Other Negligent Acts Causing Harm - contrary to Section 239 of the Penal Code against the accused is reinstated and referred to the Ba Magistrates Court to proceed to a hearing according to law;

(iii) The Accused/Respondent is admitted to bail in the sum of $100.00 to appear before the Ba Magistrates Court on 25th September 2000 at 9.15a.m.

Fiji Law Reports

State v Dayal [2000] FJLawRp 50; [2000] 1 FLR 195 (6 September 2000)