IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 68 OF 1993

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT

-AND-

HANTEX APPAREL COMPANY LIMITED
RESPONDENT

Mr. J. Hook for the Appellant
Mr. A. Rana for the Respondent

JUDGMENT

In this case the State appeals against the order of acquittal by the Magistrate on 5th of April, 1993 upon the following grounds:

(i) that the learned Magistrate erred in fact and law in not calling upon the prosecution to lead its evidence in support of the charge.

(ii) that it was not the position of the prosecution that evidence need not be led to establish the charge. In fact the prosecutor had summoned several witnesses for the prosecution on that day. (Affidavits of prosecuting officer and two witnesses in support of the State's position were attached to the Petition of Appeal).

The Defendant was charged with two counts of employing women at night between the hours of 8 p.m. and 6 a.m. contrary to Section 65 (1) & (2) and Section 99 of the Employment Act, Cap. 92.

At the hearing on the 25th March 1993 in the court below the prosecutor opened the prosecutions case by submitting that "this is a case on an industrial undertaking and no need to adduce evidence." (This was agreed by the Defence Counsel in his submission in the last sentence on page 9 of the record).

The Defence Counsel then addressed the court on the defective nature of the charges and the burden on the prosecution to prove the guilt of the Defendant Company.

At the end of the Defence Counsel's submission the prosecutor then addressed the Court in reply and the court adjourned the case to 5th April for Ruling.

On the 5th of April, 1993 the Magistrate delivered his Judgment and held that the prosecution had failed to prove the case against the Respondent.

It is evident on perusal of the record of the trial and affidavit of prosecutor that there was certainly some misunderstanding between the Magistrate and the prosecutor.

It can be reasonable to assume that when the prosecutor said "this is a case on an Industrial undertaking and as such no need to adduce evidence" the Magistrate took it to mean that there was no need for the prosecution to adduce any evidence at all and there the prosecution rested its case.

However, there is a certain element of doubt upon the actions of the Magistrate when he adjourned the matter for "ruling on submission" at the end of the prosecution's reply to the submission of the defence. It may be of some interest that on 5th of April the Magistrate did not give his "ruling" but instead gave his "judgment" as shown on the record.

His ruling on the submission of the Defence Counsel on page 11 of the record clearly shows that he was dealing with the submission pertaining to the defects in the charge. On page 11 of the record he has this to say:

"I will now deal with the issues raised by Defence Counsel in his submission.

Para (a)

(If defence was referring to form) I will not comment any further on (a) except to say that S.65 of Cap. 92 has not been repealed.

Para (b)

(i) S.78 (2) Criminal Procedure Code provides that a person who believes that an offence has been committed by any person may make a complaint to a Magistrate. This I find the prosecution has done.

(ii) S.119 C.P.C. provides that every charge or information shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Prosecution has also complied with this requirement.

Para (c)

(i) I agree with submission made by counsel that the offence under S.65 of the Employment Act raises 4 elements. As in matters alleged before this Court, the onus of proving any allegation is on the party that alleges and it is for the prosecution to prove the elements of offence before the Court - refer to R v. EDWARDS hereunder.

(ii) Counsel further submitted that prosecution should also prove the negative averments in the Section.

In R v EDWARD (1974) 59 Cr. Appeal R 213 C.A. the Court said that where the effect of the enactments is to prohibit the doing of an act subject to a proviso, exception, excuse or qualification, there is no need for the prosecution to establish a prima facie Case that the Proviso etc do not apply. (excepting exemptions etc.)

It is merely sufficient for prosecution to prove the act that is in question. Once this is done, the persuasive burden of proof shifts to the defence to prove that the proviso etc applied. S.144 Criminal Procedure Code reflects the above position by providing that any exception, exemption proviso etc to be proved by the accused and not the prosecution. "

Right up to this stage I cannot fault the procedure followed by the Magistrate.

But where, in my view, he went astray was when instead of giving his Ruling on whether the charges against the Defendant Company were defective or not he proceeded to give a "substantive judgment" without hearing any evidence at all.

It is clear from Magistrate's Judgment that he supported the submission of the Prosecution and that the charges were not defective as contended by the defence. He then should call upon the Prosecution to lead its evidence in support of the charges. If at the end of the Prosecution's case there is a submission of "no case to answer" by the defence then the Magistrate could then either adjourn to consider such submission or rule either way there and then.

In a Practice Note dated February 9 1962 1A E.R 448, Lord Parker, C.J. said:

"Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. (my emphasis) If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. "

It is clear that the Magistrate had erred in not calling the prosecution to lead its evidence in support of the charges and that the "Judgment" he gave and the order of acquittal he made were premature and therefore wrong in law.

This Appeal is allowed.

At the hearing of the Appeal both Counsels for the Appellant and Respondent agreed that the order made by the Magistrate cannot stand and submitted that the matter should be remitted to the Magistrate with an order for a new trial.

Unfortunately, while I agree that this would be the most appropriate course of action to be taken in the circumstances, proviso (b) to Section 319 (1) of the Criminal Procedure Code does not allow an order for a new trial in any appeal against an order of acquittal.

S.319 (1) states "At the hearing of an appeal, the High Court shall hear the appellant or his barrister and solicitor, if he appears, and the respondent or his barrister and solicitor, if he appears, and the Director of Public Prosecutions or his representative, if he appears, and the Supreme Court may thereupon confirm, reverse or vary the decision of the magistrate's court, or may remit the matter with the opinion of the Supreme Court thereon to the magistrate's court, or may order a new trial, or may order trial by a court of competent jurisdiction, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the magistrate's court might have exercised:

Provided that -

(a).............

(b) the Supreme Court shall not order a new trial in any appeal against an order of acquittal."

Since I cannot order a Retrial I will therefore set aside the order of acquittal made by the Magistrate on 5th April, 1993.

S W Kepa
JUDGE
3rd March, 1994.
HAA0068J.93S