State v Unknown [1997] FJMC 4; Criminal Case No 0057 of 1996 (8 October 1997)

IN THE RESIDENT MAGISTRATES COURT
AT SUVA

Criminal Case No. 57 of 1996

BEFORE MS A PRASAD ESQ
RESIDENT MAGISTRATE

8 OCTOBER 1997

JUDGMENT

Briefly the facts are that the Defendant Company in Case No. 57/96 was charged for being engaged in business without a licence. At the hearing on 9/9/96 the prosecutor Mr Gopal was not in Court. The defence counsel made application for the case to be struck out. The presiding magistrate then proceeded to strike out the case and acquit the defendant. The Defendant Company was subsequently re-charged by the prosecution, Suva City Council on 2/10/96.

From the information before me, no evidence was called and the Defendant Company was acquitted under Section 210 of the Criminal Procedure Code. The prosecution submits that the said acquittal was a nullity.

The Prosecution should have then taken the matter on appeal to have the acquittal set aside and the case re-instated. They failed to do this and the reason given by the prosecution is that they were awaiting written decision, which was not made available to them.

Grounds of Appeal can be filed without Court record and this can be amended once the record was made available. Prosecution could also have applied for extension of time to file grounds of appeal, which they did not do.

The charge that is laid against the Defendant Company is the same that was laid in the previous charge. The offence was committed on 12/9/95 and between 1/1/95 and December 1995. Defence counsel has rightly pointed out that the Prosecution is trying to use this Court as the Appellate Court.

Prosecution should be aware that only the High Court Judge can overrule the decision of a Magistrate.

The Defendant Company has been acquitted. I cannot see how the same charge can be laid again unless and until the High Court sets aside the acquittal and re-instates the case.

Having considered the submissions by both the Prosecution and the Defence, I find the charge is wrongly brought. The charge is struck out. The defendant is discharged.

(Sgd) A Prasad
Resident Magistrate