State v Khan [2014] FJMC 159; Criminal Case 1624.2009 (28 November 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: 1624/2009

STATE

v

ASLEEM KHAN

Counsels:Ms. J. Prasad for the State
:Ms. Preetika for the Accused

RULING

1. This case was fixed for hearing on 26th of November 2014 and on that day the counsel for the accused raised following objections:
   
   1. The charges should be dismissed under section 166 of the Criminal Procedure Decree due to the non-appearance of the complainant.
      
   2. The State should call Ms. Sangeeta Devi and Ms.Marissa Fong as witnesses for the prosecution case.
      
2. The State was ready to proceed with the hearing but as the counsel for the defence insisted on a written ruling for these issues I vacated the hearing and directed both parties to file submissions which they complied with.
   
3. In her detailed submission the learned counsel for the defence submitted that in this case the complainant was one Mr. Fong who is presently employed in PNG and the prosecution failed to call her as a witness. Therefore pursuant to section 166 of the Criminal Procedure Decree due to the absence of the complainant the Court needs to dismiss this charge. She further argued even though the prosecutor was available on the hearing date her task was to represent the State and being an Independent party her task is to seek justice. Also by not calling two witnesses (Sangeeta Devi and Ms.Fong) the accused will be highly prejudiced as they are the main witnesses for the prosecution case. She also sighted the State v Radrega [1996] FJHC 45; HAA0041J.96S (29 August 1996) where the Court mentioned the following passage from a judgment in an Ugandan High Court:
   

"We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses is either to adjourn the hearing, or if that is for some reason impossible to dismiss the charge unheard. We are aware that the Criminal Procedure Code does not precisely cover the present facts. But we think the position is analogous to that envisaged by section 197 of the Criminal Procedure Code that is the position which arises when the 'complainant' is absent. That section by the word 'complainant' probably means a private person who had made a complaint to the Court. In the absence of this person clearly there can be no 'trial' and no true joinder of issue. The Court under these circumstances either adjourns or dismisses the charges.

"It seems to us that the position is substantially the same where the Magistrate had before him merely a public prosecutor, whose function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on a trial of the case and to acquit the accused, the complainant against him being wholly unheard".

4. The learned state counsel in her submission argued that the section 166 of the Criminal Procedure Decree does not apply in this case as this is not a fresh charge and because the state is appearing in this case. Therefore this application is frivolous. Furthermore bank being a legal entity can sue and can be represented. Also the reason for not calling the two witnesses is that they are no longer in the country and the defence was aware about that from the beginning. The State also submitted State v ElikiMototabua [2012] FJSC Crim. App. No. CAV0005/09, 9 May 2012 where the Supreme Court stated:
   

"In the Ruling the magistrate had referred to section 198 (now section 166 Criminal Procedure Decree). That section applied to the first appearance of the accused and not to the circumstances of this case where there had already been several adjournments: Ministry of Labour, Industrial Relations and Productivity v Merchant Bank of Fiji Ltd Cr. App. HAA011.2002S, 26th April 2002 [per Shameem J]. In any event the power is one of dismissal not discharge".

5. Having considered the submissions of both parties now I would pronounce my ruling in this application.
   
6. This application was made on the first hearing date and therefore I agree with the defence that the section 166 of the Criminal Procedure Decree would apply . But to use this discretion and to dismiss a charge there needs to be certain conditions fulfilled as laid down in the section 166. I reproduce the relevant part as follows:
   

"(b) the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear—

(i) in person; or

(ii) by his or her lawyer.

(3) The expression "lawyer" in this section and in this Part shall in relation to a complaint include any prosecutor."

7. In view of the above section the Court can dismiss this charge only if the complainant (Ms.F ong) had the notice of this hearing. There is nothing before me to show that this supposed complainant was summoned and she was aware of this hearing. Therefore I do not think I can act under this section.
   
8. Even if she was summoned and not appeared in the hearing the section also mentions about his lawyer and subsection 3 mentions that lawyer includes the prosecutor. In this case the prosecutor means the DPP and in the hearing date the counsel appeared on behalf of the DPP.
   
9. The defence argument is that the prosecution is an independent party and they can't represent the complainant. But the section 166 is clear that the complainant includes the prosecution (in this case DPP) and the Court can exercise this discretion only if the complainant does not appear in person or through the prosecution. Therefore since the State was appearing in the hearing I can't act under section 166 and dismiss this charge. Accordingly I find there is no merit in this first issue.
   
10. Next issue to be determined in this case is can the Court proceed with the hearing when the complainant was not present in the hearing. The position taken by the State is that they are ready with the hearing with the two witnesses from the bank. Section 168 of the Criminal Procedure Decree states that:
    

"The court shall proceed to hear the case if at the time appointed for its hearing —

(a) both the complainant by (in person or by a lawyer), and the accused person appear before the court"(emphasis added)

11. Therefore the Court can proceed with the hearing if the lawyer for the complainant (DPP) is present on the hearing date.
    
12. The defence also wants the State to call Ms. Sangeeta and Ms. Fong as witnesses and submitted in their submission that if the state failed to call them that would prejudice their case. In Kenneth Russell – Jones[1995] 1 CR App. R. the English Court of Appeal laid down the principles of calling witnesses by the State. The principles are:
    
    1. Generally speaking the prosecution must have at Court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to rely), if the defence wants those witnesses to attend. In deciding with statement to serve, the prosecution has an unfettered discretion, but must normally disclosed material statements not served.
       
    2. The prosecution enjoys a discretion whether to call, or tender any witness it requires to attend, but the discretion is not unfettered.
       
    100. The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial ....
         
    4. The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief ....
       
13. In the Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575 the Australian High Court held that the following propositions applied to the conduct of criminal trials with respect to the selection of witnesses:
    

"The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as witness for the Crown. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

Whilst at the close of the Crown case the trial may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness

When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice".

14. In R v Oliva (1965) 49 Cr App R 298 Lord Parker CJ also held that the prosecution is not obliged to call every one of its witnesses.
    
15. In this case the reason for the state not calling the two witnesses is that they are no longer living in this country. Therefore I do not think there is any improper motive on the part of the state in not calling these witnesses. Also as mentioned in above judicial precedents the state has the discretion of calling the relevant witnesses to prove their case and I do not think it is appropriate to interfere with this discretion. Even though under the Criminal Procedure Decree this Court has the power to call these witnesses I would agree with the decisions in R v Edward (1848) 3 Cox cc 82, R v Cleghorn (1967) 2QB, R v Roberts (1984) 80 Crim App where it was held that a court should be slow to call a witness whom a counsel has decided not to call because the counsels are more fully aware of the facts than the judge can be. Accordingly there is no merit in this second ground also.
    
16. Based on the above mentioned reasons I find that the objections raised by the defence are frivolous and therefore dismiss this application. Even though these objections were raised on the last moment which led to an adjournment considering that this has been fixed for two days for hearing I would not award any cost against the defence at this stage.
    

28th November 2014

H.S.P.Somaratne
Resident Magistrate,Suva