State v Singh [2016] FJMC 99; Criminal Case 1306.2009 (26 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 1306/2009

STATE
V
VINCENT NARENDRA DEO SINGH

Counsel : Mr.Samisoni for the ODPP
: Ms.Darunidalo for the Accused
Date of Ruling : 26^th of July 2016

RULING ON TRIAL DE NOVO

1. The accused is charged with one count of Practicing or Professing to be a Medical Practitioner without being registered as a Medical Practitioner contrary to section 34(1) (b) of the Medical and Dental Practitioner Act, Cap 255 and six counts of Obtaining Money by False Pretence contrary to section 309(a) of the Penal Code, Cap 17.
2. The prosecution case was conducted on 08^th and 09^th June, 2010 and continued on 31^st August 2010. During the hearing the prosecution called 08 witnesses and on 25^th July 2011 the court found that there was a case against the accused and he was given his rights.
3. Thereafter the accused was on bench warrant for some time and this was first called before me on 09^th September 2013 and due to various reasons ( absent of the accused, non appearance of the counsel) this has to be adjourned .
4. The defence informed to me on 21^st January 2015 that they want to have a trial de novo and again on 15^th February 2016 made the same application.
5. Even though initially State agreed for this, later they objected and I directed both parties to file written submissions to determine about this issue.
6. Only the State has filed their submission within the stipulated time period and therefore I have considered only that for my ruling.
7. The State in their submission argued that the primary objective of the court is to ensure a fair trial for both parties and based on the typed proceedings, the record is clear enough for this court to proceed with the hearing without recalling the witnesses. Further the discretion is with the court to order a trial de novo pursuant to section 139(1) of the Criminal Procedure Decree (“Decree”) and granting that would be delaying this trial further which already has been pending for more than 06 years.
8. Having considered the submission of the State as well as applicable law now I pronounce my ruling in the following manner.
9. The defence made this application pursuant to section 139 of the Decree which reads:

“139. — (1) Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this Decree or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.
(2) In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.”

10. Section 139(1) of the Decree states that when a magistrate took over a case that was fully or partly heard by his predecessor, the second magistrate may act on the evidence already recorded or re-summons the witnesses.
11. Therefore it appears that section 139(1) has given the discretion to the second magistrate to decide about granting a de novo trial. This position seems to be confirmed in State v Jale Baba [2010] FJHC 317;HAC 135.2010 (17 August 2010) where his Lordship Justice Goundar said:

“The learned Magistrate has discretion to either proceed with the case on the record of the previous Magistrate, or de novo. The discretion must be exercised after weighting all the relevant factors such as sufficiency of earlier court record and whether the accused is disadvantaged by the fact that the new Magistrate had no opportunity to observe the demeanour of the prosecution witnesses when they gave evidence. Of course, no exhaustive list can be produced. The right to a fair trial is the ultimate objective.”

12. But it has to be noted that this discretion given to the magistrate under section 139(1) is subject to (2) which states the magistrate has to inform the accused when commencing the proceedings of his rights to recall the witnesses and the accused may demand the witnesses to be recalled.
13. These provisions were discussed comprehensively by his Lordship Justice Madigan in Filipe Baba v State [ 2015] FJHC 156;HAA 40.2013(6 March 2015) where the court observed :

“The discretion can only come into play if the accused is informed and doesn't make an application or demand to have witnesses recalled, in which case it is a discretionary decision of the second magistrate on his own motion whether to act on the record or hear the trial de novo.. It would appear then that on a reading of s.139 in its entirety, an application for a trial de novo in the Magistrates Court can never be refused.”

14. Even though I am mindful about the this matter is being pending from 2009, the accused has substantially contributed to that by absconding for long time and difficulty that would be encountered by the State in locating the witnesses, this court is bound by the High Court decisions and Filipe Baba (supra) the High Court has clearly stated that application for trial de novo can’t be refused by the second magistrate.
15. The discretion would come in to effect only if the accused is informed about his rights and he would not elect to recall the witnesses. Then the court can either act on the evidence already recorded or recall the witnesses.
16. Therefore I allow the application made by the defence and grant a trial de novo in this case.
    

Shageeth Somaratne

Resident Magistrate