State v Lutuciri and Others [2010] FJMC 151; Criminal Case 599.2009 (21 April 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 599 of 2009

STATE

v.

1. BALEISUVA LUTUCIRI
2. AIYAZ ALI s/o Josefa Vakacewai
3. APAITIA SERU
4. VILIAME VODO
5. TIMOCI RATUTAVAGA

For Prosecution: Ms. Leweni T. and Mr. Waqavonovono K. (DPP Office)
Accused: Mr. O'Driscoll for First, Second and Fourth Accused, Ms. King for Third and Fifth Accused.

RULING

1. This case is for ruling on objections raised by the counsels for the accused for the "proposed amendments" to the existing charges. Both parties were given time to file their submissions in writing. Counsel for the third and fifth accused filed written objections on 17th March 2010.
   
2. Even though the DPP officers were given time to file reply to the objections on 06th April 2010, the counsel appeared for the DPP informed the court that he is not filing any written submissions. Counsel for the first, second and fourth accused informed the Court that he is supporting the submissions tendered on behalf of the other accused.
   
3. Initially there were 12 counts against the five accused. Namely:
   

First Accused

Count 1:- Larceny from Dock

Count 2:- Receiving Stolen Property (Alternative)

Second Accused

Count 3:- Larceny from Dock

Count 4:- Receiving Stolen Property (Alternative)

Count 5:- Larceny from Dock

Count 6:- Receiving Stolen Property (Alternative)

Third Accused

Count 7:- Larceny from Dock

Count 8:- Receiving Stolen Property (Alternative)

Fourth Accused

Count 9:- Larceny from Dock

Count 10:- Receiving Stolen Property (Alternative)

Fifth Accused

Count 11:- Larceny from Dock

Count 12:- Receiving Stolen Property

4. Proposed amendment only comprised with 06 counts and the main alteration was the name of the complainant.
   
5. According to the existing charge sheet, the alleged stolen items were belongs to one "Bayly Clinic at Suva" whereas the proposed amendment states that the stolen items were under the control of "Fiji Inland Revenue and Customs Authority of Suva".
   
6. Three witnesses have already testified for the prosecution in this case and according to the written submissions, none of them have indicated that those mattresses and chairs in question were stolen. In fact PW-1, who was the representative of the Bayly Clinic, on oath had informed the court that they have never made a complaint to the police regarding stolen mattresses or chairs.
   
7. At the conclusion of the testimony of three prosecution witnesses, on 06th October 2010, prosecutor had made application for adjournment of two weeks for the DPP to withdraw charges or to submit "no case to answer" submissions.
   
8. After few adjournments, DPP counsel Ms. Leweni had informed the Court about amendment of charges which was objected by the defence.
   

Issue to be resolved

9. The main issue for determination in this case is "whether it is appropriate to allow the amendment of charges at this juncture" as proposed by the DPP.
   

Applicable law

10. Applicable law with regard to the amendment of charges is sec. 214 of the Criminal Procedure Code [Cap 21] which states: (as far as it is relevant).
    

"Where in any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case;............" [Emphasis mine].

11. Defence counsels' contention was that "the charges were not in any way defective either in substance or form, warrants amendment by the prosecution and the particulars of the charges sufficiently disclose the relevant facts to reliably inform the accused person of the nature and substance of the offending.
    
12. Counsels' for accused further advised the court that the prosecution is attempting this amendment merely because that they have realised that they cannot substantiate the existing charges in the light of the evidence given by witnesses and Court has no power to authorise amendment simply because the prosecution is unable to substantiate charge in its present form.
    
13. It was further states that the Sec. 214 of the Criminal Procedure Code does not give the DPP wide powers to amend the charges and in fact according to the section, amendment to a charge has to be ordered by the Court where the Court is of opinion that the charge is defective, either in substance or form. Counsels for the accused identified the DPP's application as frivolous and vexatious and abuse of the Court process.
    
14. According to the written submission filed by the counsels, the proposed amendment completely alters the existing charge and is amounting to a substitution in which case should only be allowed upon proof of defective charge by the prosecution.
    
15. When considering the proposed amendment it is apparent to me that the prosecution is proposing to replace the complainant in this case. Proposed amendment does not disclose any defects in the existing charges and thereby I accept the submission for the accused that the prosecution had failed to prove that the existing charges are defective.
    
16. According to the counsels for the accused, that nothing in the prosecution's disclosures and witnesses statements support that Fiji Inland Revenue Customs and Authority (FIRCA) is complaining about stolen mattresses or chairs and they did not receive any disclosures relating to any complaint by FIRCA in this case.
    
17. Since DPP officers did not file reply to the objections raised by the accused (after giving opportunity by the Court), I have no information before me to substantiate this position and if it is true, the prosecution's attempt to amend charges would amount to an introduction of fresh information.
    
18. Prosecution's proposed amendments in no doubt change the whole case against the accused persons and would eventually make the evidence lead so far (at least the testimony of PW-3, representative of Bayly Clinic) of no value to support the prosecution case. This invariably means that the prosecution is compelled to bring new evidence to justify the proposed amendments to the existing charges.
    
19. Considering the nature of the amendment and the repercussion following such amendment, I consider that the prosecution is seeking court's permission to bring 'new information' to a halfway concluded case by way of an amendment. According to State v. Stephens [1998] FJHC 118 on 06th August 1998, Pain J held that "if the proposed information is fresh information the approval of Court may not be needed". Justice Pain's observed that there is a possibility of co-existing two indictments at the same time.
    

"Further confirmation that two indictments can be co-exist is to be found in the Practice Direction reported in [1976] 62 Cr. App. R 251 in which the Lord Chief Justice said:

"There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person on the same facts".

20. However according to Pain J, in Stephens [mentioned above], "this should be the exception and not the rule. The Court must also have regard to the requirements of a fair trial...."
    
21. As the things are in this case, if I were to allow the proposed amendments that would eventually mean that I have to allow additional disclosures to be supplied to the accused. At the same time it would eventually become necessary to make a ruling regarding the testimonies of the witnesses, which had lead so far.
    
22. This is a classic example of taking hasty decisions before filing of charges against accused persons which ultimately would tantamount to a dismissal of case. It is always expected from the prosecution to go through all the disclosures they are in possession with utmost caution before framing charges against an accused.
    
23. However, I am still at a loss to understand as to why the prosecution had failed to identify the complainant in this case which is a basic necessity of a charge before drafting the charges.
    
24. Since the proposed amendments had not being brought to rectify a defect in the existing charges, the correct cause of action for the prosecution would be to withdraw the existing charges and to file a new case against the accused persons which is entirely at the discretion of the prosecution.
    
25. According to the above-mentioned reasons I refuse to allow proposed amendment by the prosecution.
    
26. 28 days to appeal.
    

On this Wednesday the 21st day of April 2010.

Kaweendra Nanayakkara
Resident Magistrate