IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 104 OF 1997

BETWEEN

THE STATE
APPELLANT

-and-

SHANKAR SINGH
RESPONDENT

Mrs Rachel Olutimayin – for the Appellant
Mr. Abhay Singh – for the Respondent

JUDGMENT

Background

1. Despite frequent previous Head Note References on the Papers to this matter being an Appeal by Mr. Shankar Singh, it is in fact an Appeal by The State against an Acquittal of the Respondent (Mr. Singh) by the Magistrate sitting at Suva on 3rd March, 1997. On that day the Respondent appeared on a Charge of Obtaining Money by False Pretences (F$10,400.00) contrary to Section 309 of the Penal Code. There were constant difficulties with the appearance or non-appearance of witnesses. After six hearings without even one witness being heard the Magistrate stopped the Case and acquitted the Respondent (Defendant). 

Grounds of Appeal by the State:

2. Namely that the Magistrate failed to exercise his discretion judicially in refusing to grant the Prosecution’s Application (on 3rd March, 1997) for an Adjournment so that the Case could proceed on a different day.

Previous Appeal Hearing:

3. This Appeal has already been before me. On 15th December, 1997 I allowed the Appeal and ordered the Return of the Papers to the Magistrate to continue the Hearing. However, on 10th August 1998, by a Consent Order in The Fiji Court of Appeal, the Appeal against my December 1997 Order was allowed. The Case was remitted back to the Fiji High Court for a re-hearing and the Matter came before me again for that purpose on 9th October, 1998.

Supplementation of The Magistrate’s Court Record:

4. The Fiji Court of Appeal also allowed the Parties to make Application before me for the supplementation of the Magistrate’s Original Record. A Notice of Motion for such a Supplementation Record was filed by The State on 29th September, 1998 and supported by an Affidavit to Mr. Reddy’s sworn by a Mr. Armogam Reddy (Divisional Prosecuting Officer). Attached to Mr. Reddy’s Affidavit are what I described, at the last October hearing, as ‘Prosecutors Minutes’ in this Criminal Case. I emphasized then that the purpose of an Order supplementing the Court Record is to allow any missing part of the Notes on the Magistrate’s Proceedings to be added to the Original Magistrate’s Record. To present to the Court (as in Mr. Reddy’s Affidavit) 32 Pages of a mixture of typewritten and hand-written Sheets was bordering on the ridiculous. The Pages looked as though they could be the internal Minutes or Records from a Police Document or File, or possibly ‘briefing notes’ from the Prosecuting Authority.

5. I referred Counsel to the Practice Direction (2/1982) which deals with the procedure to be followed whenever leave is given to apply to supplement a Magistrate’s Record of Proceedings. I gave a Copy of that Practise Direction to both Counsel last month. This Practise Direction sets out the Procedure to be followed and the specific requirements to be met as follows:-

The Motion of Application to Supplement the Record is to be supported by an Affidavit;

The Motion must set out the Evidence or other matters alleged to have been omitted from the Magistrate’s Record;

The Motion must identify the part of the Magistrate’s Record by stating the page and line where it is said the missing parts should appear;

The Affidavit in support of the Motion must be sworn by someone who was actually in the particular Magistrate’s Court during the proceedings and who could speak from his own knowledge and recollection of matters contained in the Motion; 

Copies of the Motion and the Affidavit must then be served on the Respondent (in this Case Mr. Shankar) and also on the Chief Magistrate;

The Chief Magistrate to then seek comments from the Magistrate Concerned. Those comments to be sent to The Chief Registrar in the High Court for placement before the High Court Judge hearing the Appeal.

It is important to note that the final paragraph of the Practise Direction (PD) states that if the Magistrate concerned is unable to accept or agree to the missing parts of his Notes (now asked to be inserted) then the Matter will rest there and proceed no further.

As I told Counsel at the October hearing, the Conditions set out in the Practise Direction are specific and every one of them is important. The supporting Affidavit before me on 9th October simply did not comply with the PD either because that PD had not been read or it had not been understood. On this basis to try and ensure that there would be no future misunderstandings, I drafted an ‘Interim Notice’ listing the precise Requirements from the PD (as above). Copies of their Interim Notice were sent to both Counsel.

The Position Today (20th November):

6. Yesterday I was given the latest Affidavits in support of the DPP’s Motion to supplement the Magistrate’s Record. The Affidavits purport to show what is said to be missing from the Magistrate’s Record in this Case. However, neither the Copy of the Motion or the Affidavits have yet been served on the Chief Magistrate.

I have difficulty in understanding why this has not been done especially as it is 6 weeks since the last Hearing. I really do not want to delay this Case any longer, or grant any further adjournments.

Review of the Magistrate’s Order

7. The Matter came first before the Magistrate on 16th August, 1996. According to the present Record there were 6 Hearings: the Defendant only appearing in half of these. The penultimate Hearing before the Magistrate was on 6th December, 1996. On that occasion the Notes read: “Prosecution not ready. Witnesses not served. Adjourned to 3rd March, 1997”.

8. When the Court re-assembled in March 1997 the Prosecution witnesses had still not been served. The Magistrate was obviously irritated and frustrated. Three months had been given to the Prosecution to assemble the Witnesses and that had still not been done. The Magistrate therefore, without apparent further ado, discharged the Defendant. But despite his frustration and irritation he should have investigated the reasons for the further delay. If after those enquiries he decided not to proceed with the Case he should have had the Charge read to the Defendant, a plea taken from him, and then considered whether to acquit. If he decided to proceed then (likewise) the Charge should have been read to the Defendant, his plea taken, and the matter adjourned to enable the witnesses to be called on a future date.

9. In the circumstances I am not satisfied the Magistrate acted judicially in reaching his decision to acquit and the Case is to be referred back to the Magistrate for him to continue the hearing. The Appeal by the State is allowed.

[Peter Surman]
Judge

20th November, 1998
HAA0104.97S