State v Cass [2022] FJMC 21; Criminal Case 11 of 2020 (10 March 2022)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Criminal Case: 863 of 2014

BETWEEN : THE STATE

AND

MICHAEL LESLIE CASS

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Ruling : 10^th of March 2022

SC Mr. Seruvatu of DPP for Prosecution
Accused Not present
Mr. Turuva for the Accused

RULING

1. This is the ruling of court in regard to an application made by the counsel for the accused on the 25^th of August 2020 moving for an abortion of the trial or for the case to be dismissed without prejudice.
2. This application was included in a supplementary submission in writing tendered to court on the same day and the prosecution has tendered to court their response through written submissions on the 19^th of October 2020.
3. Defence counsel has again filed written submissions in reply to the prosecutions submissions on the 21^st of December 2020.
4. Thereafter, this matter has not been mentioned in open court due to COVID related restrictions.
   

Submissions for the defence

5. The learned counsel for the defence has commenced the application in the supplementary written submission that was tendered to court in open court on the 25^th of August 2020, stating that no allegations of bias is made and that the present magistrate is not asked to recuse herself.
6. Whilst stating that the Magistrate’s court has jurisdiction to make such an order to abort trial or to dismiss the case without prejudice, the learned counsel has quoted the decision of Hon. Chief Magistrate in the case State v. Vereti (2013) FJMC 427.
7. It is also stated that the order sought falls within the vested jurisdiction of this court by Sections 17 and 20 of the Magistrate’s Court Act.
8. It is further stated in the written submissions that the defence has provided detailed submissions in relation to those aspects of the trial which are deficient and consequently at law are an abuse of process. However, it is noted herein that no such detailed submissions, as to the aspects of trial that are deficient and which make it an abuse of process, have been placed before court.
9. The Magistrate has power to control the proceedings and to dismiss proceedings without prejudice to the state to bring the charge again if they so decide.
10. The counsel claims that this application is not an application for a permanent stay.
11. Further submissions have been tendered to court on the 21^st of December 2020 in which further assertions have been made, together with further annexures. It is noted that the prosecution has not been given an opportunity to consider the new contentions stated in the new written submissions as well as the annexures tendered therewith.
    

Prosecution’s submissions

12. Magistrate’s Court in Fiji is a creature of statute. Having regard to that, the State has submitted that there is no provision in the Magistrate’s Court Act or in the Criminal Procedure Act that allows this sort of applications.
13. Also, the court is functus officio (meaning already rendered a decision on these issues and lacks the power to re-examine that decision) because it has already ruled in the ‘No Case to Answer Ruling’ that there is a case to answer.
14. The issues raised by the defence counsel has already been considered at the No case to answer stages.
15. Pursuant to Section 179 of the Criminal Procedure Act 2009, a case has been made out against the accused and the defence be required whether or not they intend to call evidence.
16. There is no proper basis and/or legislative provision for the learned magistrate to abort the trial and dismiss this case without prejudice.
17. This application is without any merit.
18. In the interest of justice, including the interest of the accused, the complainants, the witnesses, and the wider public interest that the trial of a serious charge should proceed without any unnecessary delay.
    

The analysis of the submissions

19. It is noted that in the supplementary submissions filed by the defence seeking an order to abort the trial and/or to dismiss the case without prejudice, mainly contains provisions regarding the powers the Magistrate’s court has to make such an order.
20. Although it is stated therein that the defence has provided detailed submissions in relation to those aspects of the trial which are deficient and consequently at law are an abuse of process, upon thoroughly examining the case record this court was unable to find out any submissions by the defence filed of record stating any such aspects of trial.
21. However, it is further noted that together with the 2^nd set of written submissions filed by them, the defence has tendered two annexures which appear to be written submissions dated 25^th January 2020 and 22^nd May 2020. Perusal of these written submissions revealed that they contain assertions that are relevant to an application to abort the trial. However, careful scrutiny of the case record revealed that these written submissions have never been tendered to court.
22. For easy referencing, the steps taken in this case (together with the relevant dates) since 14^th May 2019 when this matter was first taken up before the present Resident Magistrate, until the present application is tendered to court by the defence, are mentioned as followed.
    • 14^th May 2019 – Trial commenced and the evidence of PW1 has been recorded
    • 05^th June 2019 – PW2’s evidence recorded, and the prosecution’s case was closed. Defence counsel made an application for ‘No Case to Answer” and tendered written submissions in support of the said application. 21 days granted for DPP to respond
    • 5^th August 2019 - Prosecution has filed their written submissions
    • 22^nd November 2019 – Ruling on the “No Case to Answer” application was delivered, and the matter fixed for further Trial (Defence Case) for 3rd March 2020.
    • 27^th February 2020 - The defence has tendered a motion and affidavit moving for a recusal. The matter has been fixed for hearing and the prosecution has been granted time to respond.
    • 21^st May 2020 – The prosecution tendered their response in open court and the matter fixed for ruling for 1^st July 2020.
    • However, it has been revealed that the matter has not been taken up for hearing before fixing it for Ruling, and court has noticed the parties to appear in court on the 18^th of June 2020 and the matter has been then fixed for Hearing for 25^th August 2020.
    • 25^th August 2020 – Hearing commenced through Skype and the defence counsel withdrew their application for recusal and therefore, the hearing was vacated. The counsel further stated that they make a fresh application to abort the trial and tendered in open court supplementary written submissions giving details relevant to the said application.
      
23. Accordingly, it is very clear that the written submissions with dates 25^th January 2020 and 22^nd May 2020 which have been tendered together with the 2^nd set of written submissions of the defence relevant to the present application, have never been tendered to court before and that neither this court nor the prosecution were aware of the contents therein.
24. For the first time this court has been given the privilege of perusing the contents of those written submissions after 21^st of December 2020.
    

Whether the Magistrate has Jurisdiction to abort Trial or to dismiss the case

25. Section 101(2) of the Constitution of the Republic of the Fiji (2013) provides that, “The Magistrates Court has such jurisdiction as conferred by a written law," which means that the Magistrate’s Court unlike the High Court, does not have inherent jurisdiction.
26. In Robert Tweedle Macahill v Reginam [1980]^[1], popularly known as Macahill v R, a case where the Magistrate has dismissed a Criminal Case "for want of prosecution”, the Court of Appeal of Fiji has held that the Magistrate’s Court which is a creature of statute has no inherent jurisdiction and therefore, is confined to its statutory powers.
27. The prosecution too has pointed out in their submissions that the Magistrate’s Court in Fiji is a creature of statute. And having regard to that, the State has submitted that there is no provision in the Magistrate’s Court Act or in the Criminal Procedure Act that allows this sort of applications.
28. Since the learned Defence counsel has quoted Sections 17 and 20 of the Magistrate’s Court Act as the provisions that provide the Magistrate Court with jurisdiction to grant the order sought by the defence, attention is now drawn to the said sections.
29. Sections 17 of the Magistrate’s Court Act is the provision that provides for the Criminal jurisdiction, and it states,

In the exercise of their criminal jurisdiction magistrates shall have all the powers and jurisdiction conferred on them by the Criminal Procedure Code, this Act or any other law for the time being in force.

30. Sections 20 of the Magistrate’s Court Act provides that,

Every magistrate shall have power to issue writs of summons for the commencement of actions in a magistrates' court, to administer oaths and take solemn affirmations and declarations, to receive production of books and documents and to make such decrees and orders and issue such process and exercise such powers judicial and administrative in relation to the administration of justice, as shall from time to time be prescribed by any Act, or by rules of court, or, subject thereto, by any special order of the Chief Justice.

31. However, Sections 166, 171 and 178 of the Criminal Procedure Act have specifically provided the instances the Magistrate has power to abort trial and/or dismiss the case. When the Criminal Procedure Act has specific provisions for instances when the Magistrate’s Court may abort trial and/ or dismiss the case, it has no jurisdiction to rely upon a blanket provision such as Sections 17 and 20 of the Magistrate’s Court Act and abort trials and/or dismiss charges in other instances that would not come under the aforesaid provisions in the Criminal Procedure Act.
    
32. The learned defence counsel has pointed out in their 2^nd set of Written Submissions that the accused has not received a fair trial and that there have been defects in the trial process. And therefore, in order to cure the same, has requested court to dismiss the charge without prejudice.
    
33. The learned counsel has quoted the decision of Hon. Chief Magistrate in the case State v. Vereti (2013)^[2]and stated that Dismissal without prejudice is one among the many remedies available to a Magistrate in a situation like the present one. However, upon careful examination of the said decision of the Hon. Chief Magistrate it revealed that the application before the Chief Magistrate on the said case was not for a dismissal without prejudice but for a permanent stay of proceedings. Further, although the learned Chief Magistrate has quoted therein the decision of Winter J in Sahim –v- The State^[3], that Dismissal without prejudice; if the anxiety accompanying public accusation is sufficiently extensive, is one of the remedies that may be available, it is never accepted therein by court that the Magistrate exercising ordinary summary jurisdiction has power to do so.
    
34. It is essential to remember that the trial in this case is presently at its tail end and that only the defence case is due. Right after the trial is closed and the judgment is delivered, the accused is at liberty to appeal to the High Court regarding all his grievances. The learned counsel must be aware that the Magistrate in Fiji sitting in ordinary summary jurisdiction does not have the power to decide whether there had been no fair trial or whether there had been defects in the trial process in the Magistrate’s court.
    
35. It is obvious upon considering the time consumed for the trial (only from 14/05/2019 to 05/06/2019) that there has not been any delay from the prosecution or court. However, since the ‘No Case to Answer’ Ruling was delivered and the matter being fixed for defence case on the 22^nd November 2019, until today (more than 2 years & 3 months) the trial has been delayed due to the several interlocutory applications of the defence.
    
36. It is also noted that the defence has so far made two applications to the High Court to Stay the proceedings in this case but the Hon. High Court with the Rulings dated 04/03/2016 and 10/05/2019 has refused both the applications to Stay the proceedings.
    
37. In fact, his Lordship Justice Sunil Sharma in the Ruling dated 10^th May 2019 has required the Magistrate’s Court to ensure the trial to be heard without any further delay. If not for the several interim applications of the defence the trial could have been concluded by now.
    

Conclusion

38. It is evident that there is no legal basis to the present application of the defence and it has unnecessarily caused a grave delay in the trial process.
39. Therefore, this application is considered as frivolous and vexatious and therefore, dismissed.
40. The matter will be fixed for further trial (defence case) forthwith as per orders of His Lordship Sunil Sharma and the accused is ordered to continue with his case without any further delay.

DATED at Nadi on 10^th day of March 2022.

.........................................
Ms. Nilmini Ferdinandez
RESIDENT MAGISTRATE

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^[1] [1980] FJCA 1; Criminal Appeal No 43 of 1980 (30 September 1980)
^[2] (2013) FJMC 427
^[3] [2007] FJHC 119