IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO. HAA0117 of 1997

BETWEEN:

THE STATE
Appellant

AND:

SEMESI WAINIQOLO
AND
NACANIELI MOCE
Respondent

Counsel: Ms A Sukhdeo for Appellant
Respondents in person

Hearing: 5th March 1998
Decision: 5th March 1998

ORAL DECISION OF PAIN J.

This is an appeal by the State against the acquittal of the Respondents in the Magistrates Court and dismissal of charges against them.

The Respondents and another person were jointly charged in the Magistrates Court. The Charge contained 3 counts. Count 1 alleged Shopbreaking Entry and Larceny against the two Respondents and the third person. Count 2 alleged Damage to property against the First Respondent and the third person. Count 3 alleged an Act Intended to Cause Grievous Harm against the first Respondent alone.

All three first appeared in the Magistrate’s Court on 2nd April 1993. The First Respondent pleaded NOT GUILTY to counts 1 and 2 and Guilty to count 3. The second Respondent pleaded Guilty to count 1. The third person pleaded Not Guilty to counts 1 and 2.

Thereafter the case was adjourned on 26 occasions, over a period of two and half years for mention. Mostly, this was done to secure the attendance of all 3 accused. No fixture was ever made for the hearing of the case. At the last adjournment on 12th September 1995 the First and second Respondents were both present but the third person did not appear. A bench warrant was issued for this third person and the case was adjourned to 26th September 1995 for "mention to set a hearing". Both the first and second Respondents were remanded in custody.

The record shows that on 26th September 1995, the case was called at 9.27 a.m. The First and second Respondents were present but the third person still did not appear. On this occasion, however, the Prosecutor was also not present. The learned Magistrate thereupon ruled:

"Court

(1) Case against Accused No. 1 and No. 3 is dismissed on the grounds of no prosecutor been present in Court.

(2) Given that no prosecutor is present in Court and no reason been given to the Court as to why there is no prosecutor around in Court; the Court takes it that the prosecution is not interested in proceeding with the case.

(3) As a result of (1) and (2) above, the charges against Accused No. 1 and 3 are acquitted forthwith.

(4) 28 days to appeal

(5) Bench warrant issued against Accused No.2"

On 20th October 1995, the Director of Public Prosecutions filed a Petition of Appeal in the Magistrates Court against the acquittal of the First and Second Respondents. The record (including a memorandum from the Senior Court Officer) shows that this petition was filed away in the Magistrates Court and no entry was made in the Appeals register. This matter was no brought to the attention of the learned Magistrate until 22nd September 1997. He then arranged for the record to be prepared immediately and it was received by this Court on 23rd October 1997.

The ground of appeal is that the learned Magistrate "erred in fact and in law in acquitting the Respondents". Counsel for the Appellant submits that there is no statutory provision entitling a Magistrate to dismiss a charge for want of prosecution. It is further submitted that Sections 198 and 203 of the criminal Procedure Code are relevant. However, these sections could not be invoked because the case was adjourned to 26th September 1995 for mention and not for hearing. The learned Magistrate ought to have adjourned the case to another date pursuant to Section 202. In any event the relevant sections of the Criminal procedure Code only empower a Magistrate to dismiss the charge and not to acquit the defendant.

The procedure for trials in the Magistrates Court is governed by Part VI of the Criminal Procedure Code. There appear to be only two sections in this Part which relate to the non-appearance of the prosecutor. These are sections 198 and 203.

In my view Section 198 does not apply to the present situation where the Respondents had appeared and the case had then been adjourned on numerous occasions. Section 198 applies where "the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case or is brought before the court under arrest". That is the first calling of the case when an accused first appears before the Court on a particular charge in answer to a summons or having been arrested.

After the case is adjourned from that first hearing, Section 203 applies. The relevant provisions are slightly ambiguous. The use of the conjunctive "and" could mean that the power to dismiss only arises when the accused fails to appear and the complainant does not appear. However, giving the section the most favourable interpretation for an accused (the respondents in this case) it states:

"If at the time or place to which the hearing or further hearing is adjourned ……………………the complainant does not appear, the court may dismiss the charge………………….."

Counsel for the State submitted that the section does not apply because the case had not been adjourned to the 26th of September 1995 for hearing. The record shows that the case was adjourned to that date for "mention to set hearing".

That is giving a very narrow interpretation to the word "hearing". Another interpretation is that the word "hearing" in Section 203 is used in a general sense as meaning any calling of the case in Court for any sort of adjudication. Such a "hearing" would include any proceeding on the case whether it be, for instance, the taking of a plea, a defended trial, the determination of an interlocutory application or mention for a particular purpose such as setting a date for trial. 

The respondents are unrepresented and no legal argument has been presented by them. In the circumstances, it is safer to assume in their favour that the calling of this case for mention was a "hearing" within Section 203.

In terms of Section 203, the complainant did not appear. The complainant is the Police Officer who signed the complaint under Section 78. Usually, a Police prosecutor conducts the prosecution in the Magistrates Court and this is sufficient appearance for a complaint in terms of section 198(2). Surprisingly, that appearance by a police Officer is not incorporated into the provisions of section 203. However, that matter is purely academic because nobody appeared for the prosecution. Accordingly, the section applied and the learned Magistrate may dismiss the charge.

The use of the word "may" vests discretion in the Magistrate which must be exercised judicially. It is not automatic. The case could still be adjourned pursuant to Section 202 which provides that on such an adjournment the time and place of such further hearing must be stated in the presence and hearing of the parties then present. This indicates that a case can be adjourned in the absence of a party. This case had frequently been adjourned previously in the absence of all or some of the accused. It could likewise be adjourned in the absence of the prosecutor.

The reasons given by the learned Magistrate for dismissing the respondents were that no prosecutor was present in Court and "the court takes it that the prosecution is not interested in proceeding with the case."

In my view there is no basis for this conclusion and the learned Magistrate failed to exercise his discretion to dismiss under Section 203 in a judicial manner. There are many factors that could and should have been into account. I mention just a few obvious ones:

(1) A police prosecutor had appeared on all prior 26 occasions when the case had been called in court. On only 7 of those occasions had all three accused been present.

(2) The charges were for serious offences and the prosecutor had previously been endeavouring to arrange a fixture. This had been thwarted by the accuseds failure to appear.

(3) According to the record, the learned Magistrate acted on the non-appearance of the prosecutor without further inquiry and without giving the police an opportunity to remedy this. For instance, the case could have been stood down for this purpose. It was only a mention date.

(4) There was an application which could have been readily obtained. The case had been listed to be called before another Magistrate in another court. The prosecutor handling the file was patiently waiting in that other court.

(5) The learned Magistrate failed to consider whether an adjournment was appropriate.

In the circumstances of this case, it cannot be said that the learned Magistrate judicially exercised his discretion under Section 203 of the Criminal Procedure Code when he decided to dismiss the accused.

However, the learned Magistrate went even further and said, "Both accused No.1 and 3 are acquitted forthwith". I can find no provision in the criminal Procedure Code which enables a Magistrate to acquit an accused because the prosecutor fails to appear. The only provisions for acquittal that I am aware of are Section 210 (which provides for an acquittal if there is no case to answer) and Section 215 (which provides for acquittal after a defended hearing).

In all the circumstances, the orders made by the learned Magistrate cannot be justified.

The Appellant seeks a return of the case to the Magistrates Court for the hearing to continue. The Respondents oppose this because of the lengthy delay. It is now almost five years since they first appeared in Court on these charges.

However, the case was successfully adjourned over a period of two and half years because the Respondents and their co-accused repeatedly failed to attend the court. It then took a further two years from the date that the State filed an appearance until record of the Magistrates court was forwarded to this Court. The prosecution was in no way responsible for those delays. It is entitled to proceed with the prosecution despite the difficulties that this lapse of time may have occasioned.

Accordingly, I make the following orders:

(1) The appeal is allowed.

(2) The orders made in the Magistrates Court on 26th of September 1995 dismissing the charges and acquitting the First Respondent on counts 1, 2 and 3 and the Second respondent on count 1 are quashed.

(3) The case is remitted back to the Magistrates court for the hearing of these charges against the respondents to be continued.

Justice D B Pain