IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 7 OF 1997

THE STATE

V

NEORI TAVAKATURAGA QOLI

Counsel: Mr. J. Auld & Ms. R. Shafiq for State
 Mr. J. Maharaj for Accused

Hearing: 11th August 1997

Ruling: 11th August 1997

ORAL RULING OF PAIN J.

The Appellant was committed for trial on a charge of manslaughter. An information for that offence was laid by the Director of Public Prosecutions. 

Last week the Director of Public Prosecutions filed a further information. This is headed up "Amended Information by the Director of Public Prosecutions". It charges the Accused with the offence of assault occasioning actual bodily harm contrary to S.245 of the Penal Code. 

Prior to the Accused being arraigned, counsel for the Accused has objected to the trial proceeding on this new charge. As we are waiting to commence the trial an immediate decision is required. Counsel were not able to submit any direct authority on the issue raised. In the limited research I have had time to do I have ascertained what I believe is the correct legal position. However, I have not been able to prepare a fully reasoned judgment.

This filing of a second information by the Director of Public Prosecutions is not unique. It is frequently done, usually as in this case, alleging a lesser offence than the original charge. There is no express statutory authorisation for this procedure but it is a common practice that has been regularly permitted in this Court. Furthermore, in my view it is a procedure that is authorised by the Common Law. 

Counsel for the Accused submitted that the procedure is equivalent to the laying of a new information. If that is so, I consider there is nothing wrong with that. There is no statutory prohibition against it. At Common Law there is no rule or practice which prohibits two indictments being in existence against the one Accused at the one time (in this respect see particularly R v Munro 1993 97 Cr. App. R. 183). Of course, the prosecution could not proceed on both indictments and both indictments could not be tried together. The prosecution would need to elect to proceed on one only. The Court, of course, has power to stay the other indictment (See R v Munro (supra) and generally such cases as the R v Croydon Justices ex parte Dean 1993 3 All ER 129).

It has also been submitted by counsel for the Accused that the High Court has no jurisdiction to try this charge of assault occasioning actual bodily harm. It is said that it must be heard in the Magistrates Court. That is not so. The High Court has unlimited jurisdiction to try any offence under the Penal Code. This is specifically stated in S.4 of the Criminal Procedure Code. It is further reflected in the First schedule to that Code which designates the offences triable by Magistrates "in addition to the High Court". However, that is now subject to the provisions of the Electable Offences Decree 1988 which restricts a defendants entitlement to elect to be tried in the High Court to those offences prescribed in the schedule. However, the jurisdiction of the High Court remains unfettered.

Accordingly an offence under S.245 of the Penal Code would ordinarily be tried in the Magistrates Court and the defendant would have no right to elect trial in the High Court. However, that does not affect the jurisdiction of the High Court to try for that offence if it considers it appropriate to do so.

It may be a ground for objection that inadequate notice of the new charge has not been given. If this has caused prejudice to the accused an adjournment would be the usual remedy.

However, the defence earlier opposed an adjournment of the original charge and that application by the prosecution was refused. This is a lesser charge on exactly the same facts. The interests of justice require that it should be heard without delay. If required, I will need to hear further from the defence on this point. 

My ruling is that the prosecution is entitled to proceed on the information dated 6th August 1997 alleging the offence of assault occasioning actual bodily harm under S.245 of the Penal Code.

Justice D.B. Pain