Police v Dutt [2024] FJMC 18; Criminal Case 118 of 2018 (19 June 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 118/2018

The State -v- Sanjay Dutt

For the State: Sgt Cerei
For the Accused: In person

RULING ON ADJOURNMENT

Charge

1. The Accused is charged with one count of Burglary contrary to section 312(1) of the Crimes Act and one count of Theft contrary to section 291(1) of the Crimes Act.

Background

2. The Accused was initially charged on 21^st February 2018. He pleaded not guilty to the charge.
3. The matter was set for Hearing on 28^th August 2023 but did not proceed as the Court was not sitting. On 27^th March 2024, when the matter was called for Mention, both parties indicated that they were ready to fix the matter for Hearing today.

Application for Adjournment and Vacation of Trial

4. Prosecution now applies for an adjournment and vacation of the Hearing date today as the main witness could not be located and summoned.
5. Accused objects to the application as it a 2018 matter and seeks for matter to proceed today.
   

Analysis

6. The High Court has given guidelines on adjournments already in the case of State –v- Nand [2005] FJHC 79.

In this case Justice Winter stated as follows; -

“In R.T. McCahill, Criminal Appeal No. 43 of 1980 the Fiji Court of Appeal observed that the granting of an adjournment is a discretionary matter. An appellate court will not interfere unless it is satisfied that the discretion was not exercised judicially, and the rights of the parties were thereby defeated.

As my learned brother Pathik observed in Iqbal (supra) in reliance on dicta from Atkin L.J. in Maxwell v Keun (1928) 1 K.B. 645 at 653 observed:

“...the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order....”

When granting an adjournment in these circumstances courts must be fair to both sides. The defence because an accused is presumed innocent and entitled to have his case disposed of quickly. The prosecution because as societies guardian they must protect the public interest by ensuring that properly brought prosecutions are concluded. In R v Swansea, Justices and Davies, Ex-parte Director of Public Prosecutions, 154 J.P. 709 at 712-713 Mustill L.J. again referred to in Iqbal (supra):

“....The power to refuse an adjournment is not a disciplinary power to be exercised for the purpose of punishing slackness on the part of one of the participants in the trial. The power to adjourn is there so that the court shall have the best opportunity of giving the first available hearing to the parties.”

7. The relevant section under the Criminal Procedure Act (Decree) is section 170 (2), which provides as follows: -

“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.”

(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.

8. In this case, Prosecution has the right to present all of the evidence in support of the charge before the Court. The Accused also has a right to have the charge against him determined within a reasonable time.
9. I have considered the reasons relied upon in the application against the law. Both parties indicated before today that they were ready to take today’s Hearing date for this 2018 matter. The expectation was that we were to proceed today. Now Prosecution saying that they are not able to locate their main witness. Further, there is no guarantee that the main witness can be located in the future.
10. I therefore do not find any good cause in this application.
11. The application for adjournment is therefore refused. We will proceed to Hearing accordingly.

12. So ordered.

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Joseph Daurewa
Resident Magistrate

19^th June 2024