Mototabua v State [2011] FJSC 10; CAV0005.09 (12 August 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

[An Application for Special Leave to Appeal
CAV0005/09]
(Criminal Appeal No. AAU 045 of 2008)

BETWEEN:

ELIKI MOTOTABUA
PETITIONER

AND:

THE STATE
RESPONDENT

Coram: The Hon. Mr. Saleem Marsoof, Justice of Appeal of the Supreme Court
The Hon. Mr. Sathyaa Hettige, Justice of Appeal of the Supreme Court The Hon. Madam Anjala Wati, Justice of Appeal of the Supreme Court

Hearing: Tuesday 2nd August 2011
Counsel: Petitioner in Person.
For the Respondent : Mr. Sekonaia Vodokisolomone.

Date of Judgment: 12th August 2011

JUDGMENT

(1) The petitioner was initially charged with having in possession of Dangerous Drugs under the Dangerous Drugs Act Cap. 114 and was discharged on the 22nd February 2005 by the learned Magistrate under section 201 (2) (b) (ii) of the Criminal Procedure Code as the prosecution was not ready to proceed with the hearing after the 4th hearing date was set down.

(2) The discharge order made under the above section is not a bar to subsequent legal proceedings for the same offence.

(3) The petitioner on 6th February 2008, filed an application to the High Court to appeal out of time against the said discharge Order on the basis that the police wanted to recharge the petitioner for the same offence for which the petitioner was discharged two years previously.

(4) Even though the petitioner was self represented when he appeared before the High Court on 10th April 2008 , the State Counsel appearing for the Director of Public prosecutions informed court that the police had been advised by the Director of Public Prosecutions that the petitioner could not be recharged for the same offence due to technical reasons. It appears that the learned High Court Judge has accepted the submissions made by the State Counsel and held that there was no merit in the petitioner's application for leave out of time against the discharge Order and dismissed the application. The petitioner was well aware that the petitioner would not be recharged by the State for the same offence for which he was discharged on 22nd February 2005.

(5) The petitioner, being aggrieved by the Ruling of the High Court dated 11th April 2008 filed an application in the Court of Appeal seeking a recommendation from the court that the petitioner be given legal aid and leave to appeal against the Judgment of the High Court to the Full Court which matter was taken up on 24th November 2008 before a single Judge of the Court of Appeal.

(6) On 19th January 2009 the single Judge of the Court of Appeal acting under the provisions of Section 35 of the Court of Appeal Act informed the petitioner that Court would not recommend that the petitioner would receive legal aid in order to pursue any further appeal on the basis that the petitioner's appeal would be a vexatious and frivolous one and was bound to be unsuccessful. The application was dismissed by the Court of Appeal.

(7) However, the petitioner in his petition of Special Leave to Appeal dated 19th January 2009 has complained to this court that the learned Magistrate failed to address correctly the legal issue involved and acquit the petitioner under section 201 (2) (b) (i) of the Criminal Procedure Code. It was submitted by the petitioner, appearing in person, that the petitioner should have been acquitted and not discharged.

(8) The petitioner supporting the application further submitted that the learned High Court Judge and the Court of Appeal failed to consider his appeal in accordance with the law. Therefore the petitioner submitted that this court should interfere and set aside the discharge order of the learned Magistrate dated 22nd February 2005. The petitioner also seeks to set aside the Judgment of the learned High Court Judge and the Ruling of the single judge of Court of Appeal.

(9) In order to determine the petitioner's case this court has to consider whether the grounds of appeal the petitioner has relied on would satisfy the criteria under the provisions of section 7 (2) of the Supreme Court Act of 1998

Section 7 (2) of the Supreme Court provides as follows:

" In relation to a criminal matter the Supreme Court must not grant special leave to appeal unless

(a) A question of general legal importance is involved;
(b) A substantial question of principle affecting the administration of criminal justice is involved; or
(c) Substantial and grave injustice may otherwise occur."

(10) The petitioner in this application was discharged by the learned Magistrate under the provisions in section 201 (2) (b) (ii) of the Criminal Procedure Code.

The section 201 (1) reads as follows:

"The prosecutor may with the consent of the court at any time before a final order is passed in any case under this part withdraw the complaint.

Section 201 (2) (b) provides;

"where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 210, in his discretion make one or other of the following orders:-

(i) An order acquitting the accused
(ii) An order discharging the accused.

Section 201 (3) reads:

"An Order discharging the accused under paragraph (b) (ii)

Of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts."

(11) On a careful perusal of the provisions contained in subsection 2 (b) of section 201 it appears that there has been some injustice caused to the petitioner due to the failure on the part of learned Magistrate and the High Court to consider the applicable legal provisions as to whether the petitioner should have been acquitted when exercising the discretionary power vested in the learned Magistrate under the above section of the Criminal Procedure Code.

(12) Having considered the submissions made by the petitioner and the State Counsel who conceded the fact that there is a discretion conferred on the Magistrate under section 201 (2) (b) either to acquit the accused or discharge, we are of the view that Special Leave to Appeal should be granted to the petitioner. However, the State Counsel objected to the application for Special Leave to appeal.

(13) Accordingly we grant Special leave to Appeal under section 7 (2) ( c) of the Supreme Court Act.

(14) And now with the consent of parties we proceed to hear the main appeal of

the petitioner for expediency and for ends of justice since the discharge order has been made on 22/02/2005.

(15) On a careful reading of the section 201 (2) it can be seen that an accused can be

acquitted or discharged consequent upon a withdrawal of a charge only before the accused person is called upon to give evidence. However, if the accused is discharged under the above section, that discharge order shall not operate as a bar to subsequent proceedings against him on account of the same facts.

(16) It should be noted that in this case the petitioner was discharged after the

hearing was set down for the 4th time since the prosecution was not ready and the charge was withdrawn by the prosecution. In the High Court the learned State Counsel informed court that the Director of Public Prosecutions has advised the Police that the petitioner cannot be recharged due to technical reasons. The learned High Court Judge accepted the submissions of the State Counsel and held that there was no merit in the application and dismissed the appeal.

(17) It appears from a reading of Section 323 of the Criminal Procedure Code the High

Court has the power to call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. Obviously, when the State Counsel informed court that the police had been advised that the accused cannot be recharged for the same offence the High Court should have acquitted the petitioner in the circumstances of the case and to prevent any injustice being caused to the accused. The High Court has failed to act in terms of the law and apply its mind correctly.

(18) Upon the withdrawal of the charge by the prosecutor, question is whether the

learned Magistrate exercised the judicial discretion properly and or did the High Court exercise the judicial power properly in appeal whereas the accused ( the petitioner) should have been acquitted on the material placed before court.

(19) In the case of Sada Siwan v The State HAA050.2008L dated 29th August 2008, the High Court at Lautoka considered a similar case in appeal.

In that case the prosecution after several adjournments of the hearing dates informed the Nadi Magistrate's Court and moved to withdraw the charge and pursuant to section 201 (2) (b)(ii) of the Criminal Procedure Code the learned Magistrate discharged the accused. The decision to discharge the accused in that case was based on the seriousness of the alleged charge of corruption.

(20) The appellant in that case appealed to the High Court against the discharge order and moved for an acquittal.

In the Judgment dated 29/08/2008 the court said at page 3 thereof as follows:

"...an order made pursuant to section 201 (2) (b) is clearly discretionary. The law in relation to an appeal against the exercise of discretion is settled. The discretion will be reviewed on appeal, if the trial court acts on a wrong principle, or mistakes the facts, or is influenced by extraneous considerations or fails to take account of relevant considerations. In addition, if it should appear that on the facts the order made is unreasonable or plainly unjust, even if the nature of the error is not discoverable, the order will be reviewed ( House v The King (1936) HCA 40; 1936 55 CLR 499, Evans v Bartlam (1937 AC 473) . Failure to give weight or sufficient weight to the relevant consideration will also vitiate the exercise of a judicial discretion but only if that failure is central to the exercise of the discretion. ( Charles Osenton & Co. v Johnston (1942) AC 130."

(21) High Court further said that in exercising the discretion pursuant to section 201 (2) (b) the court must not only take into the interests of the prosecution but that of the accused as well. It should be noted that the High Court in the case of Sada Siwan (supra) has applied the correct approach when deciding on the discretion of the Magistrate under the above section 201 (2) of the Criminal Procedure Code.

(22) The petitioner contended that the discharge order already made would not debar the prosecution in law from recharging the petitioner based on the same facts . However, the possibility of recharging the petitioner would not arise in view of the fact that the Director of Public Prosecutions has advised the police by the letter dated 30th October 2006 as referred to in the Judgment of the High Court, stating that the petitioner cannot be recharged due to technical reasons for the same offence.

(23) obviously the facts and circumstances in this case are more clearer when compared with that of the case of Sada Siwan ( Supra) that the prosecution will not recharge the appellant for the same facts. And therefore the petitioner should have been acquitted.

(24) At the hearing of this application the petitioner also submitted that there had been a mix up of case nos. involving Criminal Appeal No. AAU0025/2008 and Criminal Appeal No. AAU0045/2008 whereas the correct Criminal Appeal number in relation to this case is AAU 0045/2008. However, We do not think that any prejudice has been caused to the petitioner as the Court of Appeal has explained that position in paragraph 12 of the Ruling of the Court of Appeal.

(25) For the reasons set out above we are of the view that the learned Magistrate erred in not exercising his discretion when he failed to act fairly and reasonably in the interests of justice under the provisions of law and accordingly the petitioner's appeal should be allowed.

(26) It should be noted that neither the High Court nor the Court of Appeal considered the issue of whether or not the Learned Magistrate had properly exercised the discretion under Section 201(2) (b). Both Courts had dealt with the issue of the letter by the Office of the Director of Public Prosecutions not to further recharge the petitioner to determine the matter at hand. We are of the view that notwithstanding the said letter the Courts were obliged to consider the law as raised by the Petitioner.

(27) We accordingly, allow the petitioner's appeal and set aside the discharge order of the learned Magistrate dated 22/02/2005.

(28) We set aside the Ruling of the High Court dated 11th April 2008 and the Ruling of the Court of Appeal dated 1st October 2009.

(29) We make order acquitting the petitioner.

_________________________
Hon. Justice Saleem Marsoof
Judge of the Supreme Court

_________________________
Hon. Justice Sathyaa Hettige
Judge of the Supreme Court

Hon. Justice Anjala Wati
Judge of the Supreme Court

Solicitors: Petitioner in Person.
Sekonaia Vodokisolomone for Respondent.