IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0041 OF 1996

BETWEEN:

STATE
Appellant

AND:

1. LIVARIO RADREGA
2. DAVID LAL
s/o Dhani Lal
Respondent

Mr K Wilkinson for the State
First Respondent in Person
Second Respondent in Person

JUDGMENT

The State has appealed against the acquittal of the Respondents on a charge of robbery.

The Particulars of Offence reads that the Respondents "on the 12th day of February, 1994 at Samabula in the Central Division, robbed SANJEEN SUBASH CHAND s/o Ram Subak of $1,200.00 cash the property of SHYNOO SERVICE STATION.

The facts and circumstances under which the Respondents were finally acquitted of the charge are as hereunder.

On 21 August 1994 when they appeared before the learned Magistrate for the hearing, two of the Prosecution witnesses were absent. An adjournment was sought but this was refused. The charge was dismissed and both Respondent were acquitted.

In acquitting the Respondent the learned Magistrate stated, as follows:

"On 15/6/95, this Court set today as the FINAL Hearing.

The prosecution was ready on that day. All the witnesses were present and they were warned by the Court to attend today's FINAL Hearing.

When the witnesses names were called, only 2 police officers were present for the Hearing. The complainant was not present.

This Court expects complainants to co-operate with the police in bringing complaints to a proper conclusion. This entails complainants complying with Court orders as to Final Hearing dates.

The complainant has not appeared today for the hearing of this matter. No reason has been given. By action, he has shown total disregard to the Court desire to finalise this case today by proceeding to a final hearing. That type of attitude borders on contempt for the Court's authority.

The prosecution has advised the Court that he cannot prove his case on the basis of 2 witnesses. He also said he cannot proceed without the complainant's presence.

The two accused are innocent until proven guilty in a Court of law.

The prosecution been unable to present evidence to support the charge against the two accused are discharged. The ground is that there is evidence to support the charge. The accused are accordingly acquitted on the charged laid against them pursuant to Section 210 Criminal Procedure Code."

The State has appealed upon the following grounds:

(i) The Magistrate erred in law in that he failed to act judicially in the exercise of his discretion to grant or refuse an adjournment in that he

(a) failed to take into account the history of the proceedings and the number of prior adjournment hearings occasioned by the respondents and/or their counsel;

(b) failed to consider the application for adjournment on its merit, failed to inquire as to what if any witnesses were available for the prosecution and failed to properly determine the reason for the absence of the two prosecution witnesses and the likelihood of their attending at a subsequent hearing date.

(ii) That the Magistrate erred in law by failing to apply or properly apply the provisions of Section 210 Criminal Procedure Code in that having refused the adjournment application, he failed to:

(a) ask the Defendants to plead;

(b) ask the prosecutor to open the case;

(c) to rule that a case had not been made out for the prosecution on the evidence presented.

(iii) The Magistrate erred in law in that he failed to consider the operation of Section 198 Criminal Procedure Code, Cap. 21, when it was apparent on the facts before him that there was an appearance before him of the complainants" … by his Barrister or Solicitor," the police prosecutor.

Mr Wilkinson, the learned Deputy Director of Public Prosecutions, argued that previously when hearing dates were given in this case all the witnesses were present but Mr. Semisi the learned defence counsel was not ready so the hearing was adjourned to 21 August 1995. On the hearing day Mr. Semisi was not present and the first Respondent said nothing and the second asked for adjournment because his counsel was not present and he did not know where he was.

Mr Wilkinson said that to refuse an adjournment to the prosecution was an improper exercise of discretion on the part of the learned Magistrate.

In his argument the learned State counsel referred the Court to my judgment (on a similar application) in STATE v KELEMEDI LAGI and APOLOSA NAVUNISARAVI Criminal Appeal 15/96, the High Court (then Supreme Court) judgment in THE DIRECTOR OF PUBLIC PROSECUTIONS and ROBERT TWEEDLE MACAHILL (Crim. App. 17/80 and to PAIN J'S Judgement in DPP and VIKASH SHARMA & ORS (Crim. App. No. 11/94). He submitted that s210 is to be applied only where there is hearing on merits.

The Respondents had not submissions to make.

I shall deal with the Grounds of appeal together.

The sole issue for the Court's determination is whether the learned Magistrate was right in acquitting the Respondents under s210 of CPC or should he have granted an adjournment under d198 CPC in all the circumstances of this case.

In this case there was a formal application for adjournment when the complainant was absent without any reasons known to Prosecution but two witnesses were present.

The said s198 of the CPC makes provision, inter alia, that if the complainant does not appear, "the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit …." (underlining mine for emphasis).

There is also section 203(1) CPC (under caption "non appearance of parties after adjournment") which provides, inter alia, "and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit." (underlining mine for emphasis).

Both the above sections allow the court to exercise its discretion before dismissing the charge. This is not a case of withdrawal of complaint (for which provision is made in s 201 CPC) to enable the Court to either discharge or acquit the accused. And under s 201(3) the effect of discharge is that it "shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts."

The only other section to which I ought to make reference is section 210 because after discharging the Respondents the learned Magistrate proceeded immediately to acquit them under the said section. It provides:

"If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."

It is my view that s210 has no application to the facts of this case. As the 'marginal note' to that section states 'acquittal of accused person where no case to answer', and as section itself states where, "if at the close of the evidence in support of the charge" it means that there has to be evidence adduced before the section is invoked. There was no evidence adduced to enable the learned Magistrate to proceed to acquit the Respondents under this section.

The only reasons which the learned Magistrate gives for refusing the application for adjournment are that it was a "final hearing" and that "the prosecution, was unable to present evidence to support the charge. . ." in the circumstances outlined above.

In the circumstances of this case I hold that the learned Magistrate was wrong in law and in fact in acquitting the Respondents under s210.

I am of the view that the only course open to the learned Magistrate was to exercise his discretion and dismiss the charge under section 198 and 203(1). Even under s202 CPS it was open to the learned Magistrate to adjourn this case for that section provides, inter alia:

"Before or during the hearing of any case, it shall be lawful for this Court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective barristers and solicitors then present, …".

The Appellant applied for an adjournment and in the judicial exercise of his discretion the learned Magistrate should have considered it. He failed to do that for he does not state in the Record of the proceedings that he has considered it under an appropriate section of the C.P.C.

The matter of adjournment in a situation such as the present was considered by the Fiji Court of Appeal in ROBERT TWEEDLE MACAHILL and REGINAM Cr. App. No. 43/80. There it is stated, inter alia, that a refusal is "matter of law" and that "granting of an adjournment is always the exercise of a judicial discretion".

Although an appellate Court is slow to interfere with the exercise of discretion, it does so if injustice is likely to occur to the parties, for it was said by ATKIN L.J. in MAXWELL v KEUN (1921) 1 K.B. 645, 653 C.A.:

"I quite agree 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 do 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, and it is, to my mind, its duty to do so."

Here I find there was an improper exercise of discretion. In a similar case as this in the Hong Kong case of ATTORNEY GENERAL v TUNG YING CHUEN (1987) 2 HKC 349 it was held by the Court Appeal as follows:-

"(1) In exercising his discretion whether to dismiss the charges, the judge had to consider the time during which an accused person had been kept in custody, the gravity of the charges and the behaviour of the prosecution.

(2) The judge must given an opportunity not only for the explanation of failure by any party to have a case ready but also, unless for example a party had shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time.

(3) The interests of the community had to be considered as well as those of the individual charged. The judge should have granted a further short adjournment to allow for provision to be made for the material witnesses to be brought before the court or for some explanation to be given for her absence."

This is what should have been done in this case.

Also dealing with how the courts should exercise this Discretion judicially when considering such an application WOOLF J. in R v BIRMINGHAM JUSTICES, ex p. LAM & ANOR (1983 3AWR 23, said:

"When exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, they must be just not only to the defendants but to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment means that that is an inevitable consequence."

I also adopt the passage from the judgment of HUGGINS JA in A.G. v TIP CHONG-KONG (1979) HKCR 141 is 141 where it is stated:

"It is well established that an exercise of the discretion is a matter of law which can be challenged on appeal. But equally, it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice."

I also find the following passage apt from the judgment of the High Court of Uganda sitting in appeal in the case of ARVI RATIAL GANJI 6 ULR 23 (quoting from UGANDA v MILENGE AND ANOTHER 1970 EACH 269 and 274):

"We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses is either to adjourn the hearing, or it that is for some reason impossible to dismiss the charge unheard. We are aware that the Criminal Procedure Code does not precisely cover the present facts. But we think the position is analogous to that envisaged by s197 of the Criminal Procedure Code, that is the position which arises when the 'complainant' is absent. That section by the word 'complainant' probably means a private person who has made a complaint to the Court. In the absence of this person clearly there can be no 'trial' and no true joinder of issue. The Courts under these circumstances either adjourns or dismisses the charges.

It seems to us that the position is substantially the same where the Magistrate has before him merely a public prosecutor, whose function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on a trial of the case and to acquit the accused, the complainant against him being wholly unheard." (underline mine for emphasis.)

A similar situation arose in the Hong Kong case of ATTORNEY-GENERAL v TUNG YING CHUEN (1987) 2 HKC 349at 358 C.A. and I find the following passage from the judgment of KEMPSTER J.A. apt for I consider that is how the learned Magistrate ought to have dealt with the application rather than acquitting the Respondents:

"One relevant factor must be he time during which an accused person has been kept in custody. Another must be the gravity of the charges. A third may be the behaviour of the prosecution. We incline to the view that not only must someone sitting in a judicial capacity give an opportunity for the explanation of failure by any party to have a case ready, whether in relation to documents, the availability of witnesses or otherwise but also, unless, for example, a party has shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time.

We think, even without recourse to authority, that here the failed to do justice to the Crown. After all, the interests of the community have to be considered as well as those of the individual charged. Really there is only one way in which the judge's discretion could properly have been exercised and that was to grant a further short adjournment to allow for provision to be made for the material witness to be brought before the court or for some explanation to be given for her absence."

I adopt the conclusion reached in GANJI (supra) where it is lucidly stated thus:

"If the learned magistrate had rightly assessed his powers and duty we think that he would have refused to proceed to what the respondent asks me to regard as a trial, and would have dismissed the charge unheard and have discharged the accused. What was done was done owing to a misconception by the learned magistrate of his powers and duty. We think that we cannot permit the present position to stand because of that misconception …"

In the outcome, for these reasons and on the authorities, I find that it was wrongful exercise of judicial discretion vested in the learned Magistrate when he refused the prosecution's application for an adjournment and proceeded to acquit the Respondents for the reasons he gave.

The appeal is allowed.

The order acquitting the Respondents is set aside. The case is remitted to the Magistrate's Court at Suva for a continuation of the hearing before another Magistrate according to law.

D. Pathik
Judge

At Suva
29 August 1996

HAA0041J.96S