State v Ram [2014] FJMC 72; Criminal Case 149.2011 (30 April 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 149/11

BETWEEN:

STATE

AND:

VICKY RAM, VEERU BABEN RAM & ANAND RAM

Prosecution: Cpl Samy
Accused Persons: Mr Titoko

Ruling on Adjournment

1. The accused persons are charge with the offences of Act Intended to Cause Grievous Harm contrary to section 255(b) of the Crimes Decree No. 44 of 2009 and Damaging Property contrary to section 369(1) of the Crimes Decree No. 44 of 2009.
   
2. This matter was for hearing today. Defence counsel indicated that they are ready to proceed with the hearing. Prosecution indicated otherwise.
   
3. The hearing date for this matter I apparently note was fixed on 27th November 2013. I further note that this is the third hearing date fixed for this matter. It is also a 2011 matter which was first called in court on 9th August 2011.
   
4. Prosecution made an application for adjournment on the basis that they've not been able to locate the main complainant and other civilian witnesses. It was submitted that only 4 police officers were in court for the prosecution case.
   
5. Mr Titoko for the accused persons objected to the application and briefly stated that matter is for hearing today and they've ready for hearing. It's a 2011 matter and matter should not be prolonged. It was also submitted that complainant and other civilian witnesses are not residing overseas and police should not have difficulty in locating them. It was also revealed that police had arrested the complainant in another case hence they should have applied to the court for complainant to be remanded for this case. It was submitted that matter proceed to hearing and if prosecution has no case to answer accused persons thus to be acquitted.
   

Issue

6. The issue for the court to resolve is whether to grant an adjournment in this case?
   

Analysis

7. Section 170 (1) of the Criminal Procedure Decree states that "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."
   
8. Further section 170 (2) of the CPD states that "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."
   
9. The gist of prosecutions application for adjournment was that they needed to locate complainant and other civilian witnesses for the hearing. At this stage they've been unable to locate them and only police officers are present.
   
10. Apparently this is a 2011 matter and in November last year today's hearing date was fixed. I further note that this is a serious allegation made against the accused persons and for want of prosecution and in the interest of justice matter should be heard and dealt with without unnecessary delay.
    
11. In my opinion prosecution have had about 4 -5 months to prepare for hearing and that includes locating and getting material witnesses to court. They've been unable to do that as of too date. Moreover I fail to understand as to how they were able to arrest and bring the same complainant to court on another day for a different matter and have failed to bring that person today. Whether this is deliberately done or just laxity on the part of those involved one can only speculate.
    
12. This is the third hearing date fixed for this matter and on two previous hearing dates prosecution had also requested adjournment on the same excuses.
    
13. The allegations are serious and this is a 2011 matter. More than sufficient time has been given to prosecution to get their witnesses to court and proceed to hearing. The right to prosecute should also be balanced with accused person's right to have their matter heard and dealt with in reasonable time. Charges should not be left hanging over accused persons head for long periods without any finality.
    
14. In the opinion of the Court I'm not satisfied that prosecution has shown good cause to adjourn this matter. Fairness and the interest of justice is a term that applies to both prosecution and the accused. The shortcomings of prosecution should not be used as an excuse to adjourn the matter.
    

Conclusion

15. Application for adjournment is refused. Prosecution is to proceed and close their case today.
    
16. I rule so accordingly.
    

Samuela Qica
Resident Magistrate

30th April 2014