Director of Public Prosecutions v Tuiqaqa [1985] FJSC 3; Criminal Appeal 060 of 1985 (20 December 1985)

IN THE SUPREME COURT OF FIJI
AT SUVA
Appellate Jurisdiction

Criminal Appeal No. 60 of 1985

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellate
and

JOSUA TUIQAQA

Respondent

Mr. M. D. Scott and Ms. Shameem for the Appellant
Respondent in Person

JUDGMENT

This is an appeal by the Director of Public Prosecutions against an order made during the course of the trial of respondent on a charge of robbery with violence in the Suva Magistrate’s Court refusing an application made under section 224 of the Criminal Procedure Code for the case to be tried in the Supreme Court.

The application was made after five witnesses for prosecution have given evidence and when it was learned that Dr. Cameron, a Suva Magistrate would be giving alibi evidence for the defence. The Director who appeared personally in this appeal submitted that as the question of credibility of witnesses would be a dominant issue in this case and having regard to the fact that a senior judicial offer would be giving evidence against the prosecution case which on any view was most unusual, it will be in the best interests of justice if the case were transferred and be dealt with in the Supreme Court. The Director also submitted that there were certain background matters to the case which should render it more appropriate to remove the case to this higher court. It was further submitted that it was essential to any court that its independence must be preserved and maintained. This would be difficult to achieve in this case because of the close professional relationship between the trial Magistrate and Dr. Cameron. It is said the charge facing the respondent is a serious one upon which the prosecution is not prepared to accept the proposed alibi evidence. The prosecution will set out to discredit it. Consequently it is very much feared the resolution of the question of credibility of opposing witnesses may cause the Court undue embarrassment. Such a difficulty will not arise in the Supreme Court where lay assessors are responsible for deciding the issue of credibility.

The trial Magistrate refused the application on the ground that upon a true construction of section 224 as read with section 220 of the Criminal Procedure Code the Director’s application could only be granted if this was made before the commencement of the trial and not as in this case after a number of witnesses have been called and heard.

I think the point that ought to be stressed is that the application was made on the special authority and instructions of the Director of Public Prosecutions. It was made with great concern for the proper administration of criminal justice. It was not made lightly. The question then is whether or not the trial Court was wrong in refusing the exercise its discretion in favour of the application.

I accept that upon a proper construction of sections 220 and 224 of the Criminal Procedure Code and application by a public prosecutor for Preliminary Inquiry to be held can only be made successfully before the commencement of the trial. A public prosecutor should know from his brief and the nature of his case whether it was a case upon which an application should be made. In these circumstances a public prosecutor would have no proper grounds for making such an application but if he does it would be on the basis of asking the trial Magistrate to exercise his discretion under sections 220 and 224 of the Criminal Procedure Code.

The question is whether the trial Magistrate ought to have acceded as a matter of discretion to the Director’s application. At the hearing of the appeal the Director appeared in person and made observations as to the desirability of a Supreme Court trial of this case. His observations centred around the unusual and extraordinary situation whereby a Resident Magistrate was prepared to give alibi evidence in a serious case of robbery in which the prosecution are relying on direct evidence from eye witnesses. According to the Director this case has broad implications for the administration of criminal justice.

After listening to submissions made in this Court and the fact that the respondent when asked raises no objection to the trial being removed to the Supreme Court, I am satisfied that if the trial Magistrate had had before him the same material as was placed before this Court he would have exercised his discretion in favour of granting the application.

There is a further matter that ought to be taken into account. The Director can always circumvent any difficulty in this regard by using his powers under section 71(1) of the Criminal Procedure code which provides

“71-(1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him or account of the same facts.”

No doubt the Director’s main concern is to assist in the proper administration of criminal justice and that the application for trial in the Supreme Court was made with that objective in view. I think the Courts can count on the Director not to abuse the processes of the Court and any such application will only be made upon good cause.

Appeal is allowed. The order refusing the application for trial of respondent in the Supreme Court on a charge of robbery with violence is set aside. It is further ordered that the case should continue by way of committal proceedings for trial in the Supreme Court.

Timoci Tuivaga

Chief Justice

Suva
20^th December 1985.