State v Narayan [2011] FJMC 97; Criminal Case 1311.2009 (5 September 2011)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 1311 of 2009

STATE

V

RAMENDRA MICHAEL NARAYAN

For Prosecution: Sgt Volavola
For the accused: Mr. Raman Singh

RULING ON WANT OF PROSECUTION

1] The Accused is charged with following offence.

CHARGE:

Statement of Offence [a]

First Count

DRIVING MOTOR VEHICLE UNDER THE INFLUENCE OF DRINKS OR DRUGS: Contrary to Section 102 (10 and 114 of the Land Transport Act 35 of 1998).

Particulars of Offence [b]

RAMENDRA MICHAEL NARAYAN on the 16th day of March 2009 at Nasinu in the Central Division drove a motor vehicle on Kings Road, whilst under the influence of drinks or drugs to such an extent as to be incapable of having proper control of the said motor vehicle.

2] Charged was read to the accused on 26-03-2009 and the accused pleaded not guilty to the charge. Then case was adjourned to serve disclosures. Full disclosures were served on 01-06-2009. After several mention to fix a hearing date, finally case was fixed 02nd August 2010. Then, it was called and Accused's counsel was in Suva. It was vacated. Then Again after several mention dates were given to fix hearing date. Case then was fixed on 22nd July 2011. On that date Prosecution was not ready for the hearing. They sought that hearing date be vacated on the ground of none availability of witness. The Prosecution said the accused was tested manually for this offence and that officer was suspended. The testing officer is the key officer of this case and this is a case of drunken driving.

3] The defence objected to any adjournment. They said this is an old matter, comes from 2009. They further stated that the accused was not tested manually or through dragger machine. This case was fixed for trial on January 2011 and the prosecution has given ample time to serve the witness. They failed to do it and his client faces hardships by giving dates.

Law

4] In section of the Criminal Procedure Decree 2009 grants power to adjourn cases on "good cause".

"170. — (1) During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless there is good cause, which is to be stated in the record.

(2) For the purpose of sub-section (1) "good cause" includes the reasonably excusable absence of a party or witness or of a party's lawyer.

(3) An adjournment under sub-section (1) must be to a time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective lawyers then present.

(4) During the adjournment of a case under sub-section (1), the magistrate may —

(a) permit the accused person to leave the court until the further hearing of the case; or

(b) commit the accused to prison; or

(c) release the accused upon his or her entering into a bond (with or without sureties at the discretion of the magistrate) conditioned for his or her appearance at the time and place to which the hearing or further hearing is adjourned.

(5) If the accused person has been committed to prison during an adjournment the adjournment may not be for more than 48 hours.

(6) If a case is adjourned, the magistrate may not dismiss it for want of prosecution and must allow the prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing, before adjudicating on the case.

(7) A case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate(for good cause which is to be stated in the record)considers such an adjournment to be required in the interests of justice." (Underlining is mine)

5] Granting of adjournment on hearing date is a matter of discretion of the court. His Lordship Justice Goundar in the case of State v Agape Fishing Enterprises (2008) FJHC19; HAA 011.2008 (15 February 2008) said in his judgment;

"The granting of an adjournment is a matter of discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice are done to one or other of the parties (see, McCahill v State, Criminal Appeal No. 43 of 1980; Chand v State, Criminal Appeal No. AAU0056 of 1999S)."

6] Case record indicates this case fixed on 19th January 2011. But it is clear that they failed to call their witness. I admit that the prosecution has not taken due diligence to prosecute the accused. Though they have given 7 months, they failed to call the witnesses. This court also admits the cases to be adjudicated and disposed on merits. But it is to ne noted; normally Magistrate court is a busy creature unlike other court. Apart for the date to day cause lists, this court normally fix three or four hearing per day. Truly, this court's diary is fully booked for this year and if hearing date was vacated, case to be postponed till next year. The burden to prosecute the accused timely manner is lies on the prosecution.

7] Applications for vacate hearing date are often made in this court by the prosecution. It is a discretionary remedy and case record indicates one hearing date was vacated on the application of the defence. I use my discretion to grant a final date for prosecution. Both parties are equally liable for delaying and sometimes no Magistrates were avail.

8] I make following orders;

a) Final adjournment is granted for the prosecution

b) No cost in this application

9]. 28 days to appeal.

On this 05th day of September 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate