IN THE HIGH COURT OF FIJI
(AT SUVA)

CRIMINAL APPEAL NO. HAA0046 OF 1996

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

And

ETIKA MOKOTI
Respondent

Ms. L. Tabuya for the Appellant
Respondent in Person

JUDGMENT

This is an appeal against the respondent’s acquittal brought by the Director of Public Prosecutions following a refusal by the Resident Magistrate (S. Temo Esq) to grant an adjournment of a trial of the respondent on one charge of robbery with violence.

It is now clearly established that in the circumstances disclosed the Resident Magistrate acted on a wrong principle when he refused the prosecution’s request for adjournment without considering the full consequences of his refusal (see for example DPP v Vikesh Sharma and Others HAA0011/1994 and DPP v. Neumi Kalou and Anr HAA0016/1996). The question now however is whether I should set aside the acquittal and return the matter to the Magistrate Court for the trial to proceed.

One feature of this case which stands out is that the alleged offence was committed on 9 June 1995 yet the appeal against the acquittal which entered on 25 September 1995 did not come before me for hearing until almost 18 months after the alleged offence was committed. There are a number of reasons for the delay but the overall reason is that the question of the appeal was not dealt with by the prosecuting authorities with sufficient diligence and dispatch.

If I were to set aside the acquittal now the probability, given the delays in the Suva Magistrates Court, is that trial could not take place until well into next year, that is, approaching 2 years after the alleged offence was committed.

The Respondent is a young man of 18, a farmer without relevant previous convictions. He said that he has reconciled with the complainant while Ms. Tabuya told me that some of the alleged stolen property has been recovered (contrary to what is said on page 5 of the record).

An appeal against acquittal is not lightly allowed. The rule against double jeopardy is not avoided without good cause. In all the circumstances of the present case I am not satisfied that intervention by this Court would be warranted and accordingly the appeal fails and is dismissed.

M D. Scott
JUDGE

28 day of October 1996

HAA0046j\96s